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The Pennsylvania-Maryland 
Boundary Controversy 



BY 

CHARLES C. TANSILL, A. B., A. M. 



A DISSERTATION 

Suhnitted to the Faculiy of Philosophy of the Catholic 

University of America in Partial Fulfillment 

of Its Requirements for the Degree of 

Doctor of Philosophy 



The Pennsylvania-Maryland 
Boundary Controversy 



BY 

CHARLES C!' TANSILL, A. B., A. M. 



A DISSERTATION 

Submitted to the Faculty of Philosophy of the Catholic 

University of America in Partial Fulfillment 

of Its Requirements for the Degree of 

Doctor of Philosophy 



\ 






National Capital Press, Inc. 

Book Manufacturers 

Washington, D. C. 



In 



1 






TABLE OF CONTENTS. 

Page 

Introduction 5 

Chapter I. Charles Calvert and William Penn 12 

Chapter II. "Haeteniis Inculta" 19 

Chapter III. Pennsylvania 29 

Chapter IV. The Character of William Penn 56 

Conclusion 66 



INTRODUCTION. 

Grenerally an investigator engaged upon a special topic 
discovers a vast amount of material written upon the very- 
subject in which he is interested. Many of his conclu- 
sions will be anticipated, so that often his task will be 
merely a restatement of facts, or perhaps, a new interpre- 
tation of historical documents. In the present disserta- 
tion, the author has endeavored to present a clear account 
of the Pennsylvania-Maryland Boundary Controversy, 
one of the most complicated in American colonial history, 
and a subject which in his opinion has never been scien- 
tifically examined. 

By a patent of 1632, King Charles I granted to Cecil- 
ius Calvert, second Baron Baltimore, a tract of land in 
the region of Chesapeake Bay. It was bounded on the 
south by "a Right line drawn from the promontory 
called Watkins Point unto the Main Ocean on the East, 
and between that boundary on the south unto that part of 
the Bay of Delaware on the North, which lyeth under the 
Fortieth Degree of North Latitude;" thence "by a Right 
Line unto the meridian of the first fountain of the River 
of Pattowmack. ' '^ 

It will be seen that this grant included not only the 
present State of Maryland, but the whole of Delaware 
as well as a considerable part of Pennsylvania. In other 
words, all that section of Pennsylvania below the fortieth 
parallel was embraced in the original province of Mary- 
land. Nearly half a century later, March 4, 1681, William 
Penn received from King Charles II a grant of territory 
extending from the northern boundary of Maryland to 
the forty-second degree of north latitude. The purpose of 
the present inquiry is to determine how the Calverts lost, 
and how the Penns acquired Delaware and the very im- 
portant part of Pennsylvania below the fortieth parallel, 



* Macdonald Select Charters, p. 55. 



6 THE PENNSYLVANIA-MARYLAND 

which falls just above the city of Philadelphia. It will 
also examine the status of those Dutch settlements estab- 
lished on territory claimed by England; discuss a mys- 
terious map, which did efficient service for early Penn- 
sylvania ; and investigate the character of William Penn, 
the celebrated Quaker leader. 

The first point in this boundary controversy that re- 
quires discussion is the argument advanced by the Penns 
relative to the phrase "hactenus inculta," which was con- 
tained in the preamble of the Maryland charter. All the 
early colonial charters expressly excepted from coloniza- 
tion any lands already in the possession of Christian 
princes. In the Virginia charter of 1606, England merely 
claimed the territory lying between the thirty-fourth and 
forty-fifth parallels of north latitude. That is to say, 
immigrants to the New "World could not settle below the 
thirty-fourth parallel. All territory south of that line 
belonged to Spain by right of prior discovery and occupa- 
tion, and the jurisdiction of the Spanish sovereign was 
duly respected. 

But the Dutch government refused to admit the Eng- 
lish claims to the territory included in the two patents of 
James I, namely, that of 1606 and that of 1609, and as 
early as 1610 Dutch traders began to frequent the Hud- 
son. By 1620, they had established trading booths on 
Manhattan Island, for in that year they were warned by 
an English trader. Captain Dermer, ''not to trespass on 
English territory. ' '^ 

In 1621, Sir Dudley Carlton, the English minister at 
The Hague, by order of Sir George Calvert, then Secre- 
tary of State, complained to the Dutch government of the 
presence of Dutch settlers on the Hudson and the Dela- 
ware. In reply, he was informed that ''there was no 
plantation to impeach the English right. "^ In other 
words, the Dutch disclaimed all knowledge of the exis- 



2 Channing, Hist, of the U. S. Vol. 1, pp. 443-445. 

3 Channing, Hist, of the U. S. Vol. 1, note, p. 445. 



BOUNDARY CONTROVERSY 7 

tence of any permanent settlement in the region of the 
Hudson. Subsequently, Carlton was directed to require 
the Dutch to discontinue the plantation ; but the govern- 
ment at The Hague assured him "that only fur traders 
were on the Hudson."* 

In 1632, the Council for New England caused the de- 
tention of the Dutch ship Eendragt, and in answer to the 
protest of the Dutch ministers, Charles I pithily observed 
that "permission" would be extended to Dutch settlers 
only on condition that they would submit themselves as 
subjects to his Majesty's government."' 

But notwithstanding this clear proof of the attitude 
of the English government in 1632 toward the Dutch set- 
tlements, William Penn, as we shall see, maintained that 
Charles I wished to respect the Dutch claim to Delaware, 
and that the phrase "hitherto uncultivated" excluded 
from Baltimore's patent all the territory actually covered 
by Dutch plantations. 

It has been the purpose of the writer carefully to ex- 
amine this argument based upon the phrase "hitherto 
uncultivated," and clearly to present the real attitude of 
Charles I in regard to the Dutch claim. This inquiry has 
been suggested by the confident opinions expressed by 
nearly all Pennsylvania historians who have treated this 
subject. In his History of Pennsylvania (1797), Eobert 
Proud, the first to support Penn's claims to Delaware, 
asserts that the phrase "hitherto uncultivated" was 
intended to exclude from Baltimore's patent any Dutch 
settlements that may have been planted before 1632. 
Proud has been faithfully followed by subsequent his- 
torians, and as late as 1896, Sydney G. Fisher observes 
that "the Dutch had been in possession of the shores of 
Delaware Bay for ten years before Lord Baltimore's 
charter was issued, and his boundaries in that direction 



* Channing, Eist. of the U. S. Vol. 1, note, p. 446. 
6 Brodhead, Hist, of New York. Vol. 1, p. 216. 



8 THE PENNSYLVANIA-MARYLAND 

were evidently defective."® Such statements appear to 
proceed either from a willful blindness, or a hasty inter- 
pretation of historical documents. 

But this is only one illustration of the liability of his- 
torians to overlook, or not sufficiently to emphasize famil- 
iar facts. Penn's acquisition of the Lower Counties 
through deeds of enfeoffment from the Duke of York, 
when, as a matter of fact, that nobleman possessed no 
legal title thereto, has been defended by many writers as 
a perfectly lawful transaction. Again, the activity of Wil- 
liam Penn in influencing in 1685 the decision of the Com- 
mittee of Council, has found champions who refer to it as 
a measure of vital importance to the future development 
of Pennsylvania. 

Indeed, even the obscure agreement of 1732, whereby 
the Penns deprived Baltimore of a considerable part of 
his province, has been explained to the satisfaction of the 
biographers of Penn. They hold that the map, which ap- 
pears to have been a forgery, prefixed to the agreement 
of 1732, was produced by Charles Calvert himself, and 
that he was liable for his own negligence. Although this 
question will be more fully examined in a succeeding 
chapter, it might be useful at this point to inform the 
reader that after an examination of this map, he will prob- 
ably think that startling properties were possessed by a 
certain headland named Cape Henlopen, which, like the 
cuckoo 's call, was at once both near and far. 

In 1733, Charles Calvert, fifth Baron Baltimore, vis- 
ited Maryland, and on being informed of the sinister con- 
duct of the Penns, refused to carry out the agreement he 
had made in the previous year. The heirs of William 
Penn immediately brought suit in a court of equity to 
compel the specific performance of the contract, but, it 
was not until 1750 that a decision was rendered by Lord 
Hardwicke. After calling attention to the efforts of Cal- 
vert to evade the agreement of 1732, this jurist dwells at 

* Fisher, Making of Pennsylvania, p. 325. 



BOUNDARY CONTROVERSY 9 

length upon the expense incurred by the Penns in the 
settlement of the Lower Counties. He then ordered the 
articles of agreement to be fulfilled, and directed that 
Baltimore pay the entire cost of the suit as ascertained by 
a master in chancery. In 1767, the northern boundary of 
Maryland was fixed at 39° 44', and extended westward 
230 miles from the tangent line. In 1769, an Order in 
Council confirmed this settlement, and brought to a close 
one of the most protracted boundary controversies in our 
colonial histry. 

Perhaps the most judicious account of this boundary 
controversy may be found in J. V. L. McMahon's Histor- 
ical View of Maryland (1831). Though written early in 
the nineteenth century, his work is accurate and scholarly, 
and has served as a foundation for all subsequent trea- 
tises on the history of that State. 

An important document dealing with this boundary 
dispute is the Bill in Equity filed by the Penns to compel 
the specific performance of the agreement made in 1732 
with Charles Calvert (fifth Baron Baltimore). This 
bill, which is a complete history of the controversy, is 
printed in Vol. 16 of the Pennsylvania Archives, and is an 
admirable presentation of the claims made by the Penns. 
The Dismemberment of Maryland (1890), written by 
William Archer, is a spirited defense of the Calverts, and 
exhibits an extreme rancor towards the founder of Penn- 
sylvania. It is, however, the most exhaustive presenta- 
tion of the Maryland side, and though marred by a strain 
of facetiousness, shows a thorough knowledge of the 
Maryland archives. But there is one question that ap- 
pears to perplex the Maryland historian; namely, the 
origin of the twelve-mile circle drawn about Newcastle 
"Northwards and Westward unto the beginning of the 
fortieth degree of Northerne Latitude." After discuss- 
ing the obscurity of the language of the Pennsylvania 
charter, Mr. Archer observes that the three words, "the 
beginning of" the fortieth degree, were "either inserted 



10 THE PENNSYLVANIA-MARYLAND 

by some honest, tliough officious, blunderer, or subse- 
quently interpolated by some sharp knave, with the delib- 
erate desig-n of rendering the terms of the charter am- 
biguous, in order to serve some unworthy purpose, after- 
wards to be carried out. If, however, some one can better 
explain this absurd stumbling block in Penn's charter, 
I shall cheerfully accept the solution. ' " 

It is clearly shown by the correspondence of Sir 
John Werden, secretary to the Duke of York, that Penn 
himself thought the fortieth parallel was located about 
twelve miles to the north of Newcastle, and probably it 
was at Penn's suggestion that the twelve-mile circle was 
drawn about that town. Now the thirty-ninth parallel, or 
technically 'Hhe beginning" of the fortieth degree of 
north latitude, crosses Maryland a few miles to the north 
of the city of Washington, and its exact location was indi- 
cated on contemporary charts. To suppose, as many 
Pennsylvania historians would have us do, that the 
twelve-mile circle was drawn to intersect a parallel in 
the latitude of Washington, is inconceivable. This sup- 
position would limit Baltimore to one degree of latitude, 
while Penn himself, before his relations with Calvert 
became strained, considered the Maryland charter to 
contain at least two degrees. The circle, then, appears 
to have proceeded from Penn's suggestion, and was 
drawn as a safeguard to the Duke of York's Newcastle 
province. 

The most scholarly exposition of this intricate sub- 
ject is to be found in Shepherd's Proprietary Government 
in Pennsylvania (1896). The important facts of the con- 
troversy are impartially stated, and the legal aspects of 
the whole question carefully reviewed. 

But most accounts of this dispute have been marked 
by prejudice. It has been the purpose of the author to 
develop certain points merely touched upon in previous 
studies, and also to present some phases of this contro- 

^ Maryland Fund Publications, No. 30, p. 39. 



BOUNDARY CONTROVERSY 11 

versy from a new angle. Hitherto, the argument based 
upon the descriptive phrase hactenus inculta, has not been 
sufficiently examined by Maryland historians. Again, in 
the treatment of the character of William Penn, most of 
his biographers have been willfully blind. 

Finally, it must be said that the Calendar of English 
State Papers has proved invaluable, and that the present 
study has been principally based upon the documents 
found therein. 



CHAPTER I 
CHARLES CALVERT AND WILLIAM PENN 

It is evident that any dissertation discussing the Penn- 
sylvania-Maryland Boundary Controversy, should be pre- 
faced by a brief account of the lives and personal rela- 
tions of the respective proprietors, William Penn and 
Charles Calvert, third Baron Baltimore. 

Of Charles Calvert but little is known. His grand- 
father, George Calvert, the first Baron Baltimore, at- 
tained to a high position at the court of James I, and 
though he retired from public life at the accession of 
Charles I, his withdrawal was purely from preference; 
certainly it was not, as has been insinuated by some 
historians, from suggestion.® 

From the very beginning, the first Baron Baltimore 
had taken an active interest in colonization. He sub- 
scribed to two shares in the London Company, and after 
the revocation of the Virginia charter in 1624, he was ap- 
pointed one of the provisional council for the manage- 
ment of the affairs of that colony. He was also one of 
the eighteen councillors of the New England Company, 
and in general displayed a spirit of enterprise in all 
colonial ventures. 

The charters granted to the Virginia Company (1606), 
and to the Council for New England (1620), had conveyed 
all the territory from the Cape Fear River to Nova Sco- 
tia, so George Calvert in his quest for a suitable tract for 
colonization, finally decided to try his experiment upon 
the island of Newfoundland. In 1620, he purchased a 
plantation on that island, and, moved by pious tradition, 
named it Avalon. He then sent out a number of colonists 
under a Captain Wynne, who reported that the ''salt 
works were promising," and that the ''fishery was the 
finest in the world." 

8 Channing, Hist, of the U. S. Vol. I, p. 241. 
12 



BOUNDARY CONTROVERSY 13 

The reports of Wynne were more than confirmed 
by Captain Eichard Whitbourne, who, in 1622, published 
a remarkable pamphlet entitled, "Westward Hoe for 
Avalon. ' ' Whitbourne must have been an ardent admirer 
of the facile discourse of that interesting traveler, John 
Mandeville. Newfoundland, as described in the glowing 
pages of this second ''Westward Hoe," is a sort of Flor- 
ida, an earthly paradise. "Red and damask roses" per- 
fume the balmy air, while strawberries, raspberries, 
pears and cherries may be found in abundance. Night- 
ingales fill the peaceful groves with liquid song; the wild 
beasts are strangely tame, and he gravely assures his 
readers that in St. John's harbor he distinctly saw a 
mermaid. Whether the last observation is mentioned by 
way of a further inducement to possible colonists, is not 
sufficiently clear. 

Baltimore, enchanted with the prospect portrayed in 
the narrative of Whitbourne, and throwing to the winds 
the caution that should have been inspired by the mys- 
terious fate of the Eoanoke colony, and the "Starving 
Time ' ' at Jamestown, decided to plant a large colony on 
the southeastern peninsula of Newfoundland. On April 
7, 1623, a royal charter was issued to Calvert, creating 
him lord proprietor of Avalon with the same rights and 
privileges as were enjoyed by the Bishop of Durham. 
Shortly afterward he despatched a large body of settlers, 
and the colonization of Newfoundland was begun in 
earnest. 

The fate of the colony at Avalon may be told in a few 
words. The opposition of the Puritans, the hostility of 
the French, and the severity of the climate soon con- 
vinced Calvert that success must be sought in another 
quarter; therefore, he petitioned the King for territory 
situated in a more temperate climate. In the meantime, 
he sailed with his family and friends for Jamestown. 
Their cold reception by their countrymen in Virginia, 
and their departure for England are among the most 



14 THE PENNSYLVANIA-MARYLAND 

familiar incidents in early American history. On his 
arrival in England, Calvert in person pressed his appli- 
cation upon King Charles I, and, as will presently appear, 
with perfect success. However, before considering this 
subject it may be well, for the purpose of clearness, 
briefly to notice a few related facts in the earlier annals 
of the struggling colony of Virginia. 

As is well known, the years between 1583 and 1606 
were marked by many English attempts to colonize Amer- 
ica. In this place the failures of that era need not be 
enumerated. Yet these years of discouragement and 
even of disaster were not entirely barren, for the race 
destined to control America was slowly acquiring experi- 
ence. It was during 1606 that there was organized in 
England a company for colonizing the New World. This 
corporation had a branch in London, and one in Ply- 
mouth. For the moment it is in the fortunes of the 
former that we are interested. 

Accompanied by one of the patentees, Edward-Maria 
Wingfield, and during their voyage under the command 
of Sir Christopher Newport, a band of 120 Englishmen 
sailed for Virginia. The tragic story that filled the years 
from 1607 to 1625 need not detain us. By the charter of 
1609, the London branch of the corporation was empow- 
ered to make settlements along the coast from Point Com- 
fort northward for a distance of 200 miles, and southward 
from the same cape for an equal distance. Three years 
later a third charter was granted to the Virginia Com- 
pany. This instrument not only provided for the incor- 
poration of the Bermudas, but its liberal provisions made 
possible the introduction of representative government 
into Virginia. It is not necessary to recount the dissen- 
sions that arose within the company itself, the opposition 
of King James I, or the revocation of the charter in 1624. 
These facts are familiar. 

But even after the vacation of the charter, there was a 
strong party in England, and in the colony itself, that 



BOUNDARY CONTROVERSY 15 

hoped to obtain a new one. Therefore, any petitioner who 
asked for lands included within the boundaries granted 
by the Virginia charters of 1609 and 1612, was regarded 
with feelings of suspicion and even of hatred. 

Charles I, acting upon the petition of George Calvert, 
granted him the territory lying between the James River 
and the thirty-sixth parallel. This grant, however, evoked 
so violent a storm of protest from the members of the de- 
funct Virginia Company, that Calvert executed a release, 
and in 1632, received a new grant for lands north of Vir- 
ginia. The boundaries, as expressed in this instrument, 
extended from the mouth of the Potomac to the fortieth 
parallel; along that parallel to the meridian that passes 
through the most westerly fountain of the Potomac; 
thence along the southern bank of that river to its mouth. 
Thus it is apparent that the present State of Delaware, 
and a considerable part of Pennsylvania, lay within the 
boundaries given in the charter of 1632. But before the 
charter passed the seals, George Calvert had died, and 
the instrument was made out in favor of Cecilius Calvert, 
eldest son of the deceased, and the second Baron Balti- 
more. 

The character of the new proprietor is best revealed 
in his admirable administration of his province. Pru- 
dent, far-seeing, tactful and eminently just, Cecilius Cal- 
vert may be reckoned one of the noblest of American 
colonizers. And this is no small honor when one remem- 
bers that some of the most illustrious characters in Eng- 
land were actively engaged in planting colonies beyond 
the western seas. Indeed, as Elson aptly observes : *'One 
may search in vain through all our colonial history for a 
ruler superior to Cecilius Calvert. ' '® 

Charles Calvert, in whose proprietorship originated 
the controversy we are about to discuss, arrived in Mary- 
land during the year 1661. In 1675, upon the death of his 
father, Charles became resident proprietor of Maryland, 

» Elson, Hist, of the U. S., p. 79. 



16 THE PENNSYLVANIA-MARYLAND 

thereby securing to the province an advantage enjoyed 
by but few of the English colonies. During his long in- 
cumbency of some forty years, he exhibited nearly all the 
traits of character that had distinguished his father and 
his grandfather, and the fact that the quit-rent system 
reached its highest development in Maryland, is a suffi- 
cient illustration of the regard entertained for him, as 
well as a proof of the general prosperity of his province. 

But Charles has not been without his critics. Mere- 
ness considers him ''cold and self-centered,"^** though this 
charge hardly seems supported by the proceedings of the 
Maryland Assembly, for on one occasion when they voted 
Calvert a gift of 100,000 pounds of tobacco as an expres- 
sion of ''gratitude" and an appreciation of his "benign 
administration, ' ' the Proprietor declined the donation on 
the ground that it would impose extra burdens upon the 
taxpayers. 

A prominent Maryland Historian gives, perhaps, the 
best analysis of the character of the second lord Proprie- 
tor. "We recognize in him," says Hall, "a fair and just 
man, but one lacking in many respects the largeness of 
view and conciliatory disposition by which his father 
was distinguished. His administration of the affairs of 
the province, though sometimes arbitrary, was eminently 
humane, and those who sought a panacea of all ills by the 
overthrow of his government, had yet to learn, like the 
malcontents of old who demanded a king rule over them, 
that a royal yoke is not always easy. ' '" 

When we consider the other Proprietor who was in- 
volved in this controversy, we conae to one of the 
most famous characters in American colonial history 
— ^William Penn. His father. Admiral Sir William Penn, 
had entered the royal navy at an early age, and when he 
had attained to his thirty-first year, was appointed Vice- 
Admiral of England. The immediate desire of his heart 



1" Maryland as a Proprietary Province, p. 33. 

^1 The Lords Baltimore and the Maryland Palatinate, p. 128. 



BOUNDARY CONTROVERSY 17 

was to elevate the social standing of his family, so his 
son, William, was sent to Oxford to acquire some 
useful knowledge, and better still, to form valuable 
acquaintanceships. 

While at college, the younger Penn chanced to attend 
a meeting presided over by a Quaker, Thomas Loe, and 
the new teachings made an indelible impression upon the 
plastic mind of the future proprietor of Pennsylvania. 
At that time Oxford was strictly orthodox, and Penn was 
soon dismissed for non-conformity. Upon his return 
home, his irate father refused him admittance; then, 
thinking that travel might efface these foolish first im- 
pressions, he sent his son on a pleasure trip to the 
continent. 

After his return from his travels, Penn began the 
study of law. But the Admiral soon detected signs of 
unwonted seriousness in one so young, and fearing a re- 
turn of the influence of Quaker principles, he sent his son 
in 1666 to administer some estates in Ireland. The gay 
life at the court of the Duke of Ormond, then Lord Lieu- 
tenant, seemed to have the desired effect, and Penn be- 
came a leader in the social activities at Dublin. 

Some time after his arrival in Ireland, a mutiny broke 
out among the troops at Carrickfergus, and Penn ren- 
dered such valuable assistance in its suppression, that the 
Duke recommended the young cavalier for the position 
of Captain of the company of soldiers quartered on the 
elder Penn's estate at Kinsale. But the Admiral feared 
that such an appointment would excite the vanity of his 
son, and refused to adopt the suggestion. Inasmuch as 
the captaincy seems to have been eagerly sought after by 
the future proprietor, there is little doubt that had the 
appointment been made, the course of our colonial his- 
tory would have been considerably altered. 

But Penn's career appears to have been written in 
the resolves of destiny. One day, while in Cork on busi- 
ness, he heard that his old friend Thomas Loe was to 



18 THE PENNSYLVANIA-MARYLAND 

preach, and feeling a revival of his former interest in the 
Quaker teachings, he decided to attend the meeting. The 
text was : ' ' There is a Faith which Overcometh the World, 
and there is a Faith which is Overcometk by the World, ' ' 
and from that moment Penn was a professed Quaker. In 
1668 he publicly announced his conversion to the Quaker 
faith, and during the next ten years was repeatedly fined 
and imprisoned for the active support he gave to the fol- 
lowers of Fox. But better times were at hand. As 
Charles II was approaching the end of his reign, the influ- 
ence of his brother, James, Duke of York, was daily grow- 
ing stronger. 

James, an avowed Catholic, wished toleration for his 
co-religionists, and even before the death of Charles II, 
the statutes against non-conformists were held in abey- 
ance. In 1687, when James had reigned for nearly two 
years, the Declaration of Indulgence was promulgated. 
This removed the restrictions against all dissenters, thus 
placing the different branches of the Christian religion 
upon an equal footing. 

These events and the subsequent revolution of 1688, 
do not concern us here. Penn's relations with America 
antedate the fall of James II by many years, and began 
about the year 1676, when he became interested in the 
Jerseys. The grant of 1681, and the difficulties attend- 
ant upon the boundary settlement are reserved for treat- 
ment in the succeeding chapters. The foregoing has sim- 
ply been by way of introduction, and merely the barest 
outlines of the lives of the respective proprietors have 
been attempted. 



CHAPTER II 

"HACTENUS INCULTA" 

The preamble to the Maryland charter reads as fol- 
lows: ''Whereas our well beloved and right trusty Sub- 
ject Caecilius Calvert, Baron of Baltimore, in our King- 
dom of Ireland, son and Heir of George Calvert, Knight, 
late Baron of Baltimore, in our said Kingdom of Ireland, 
treading in the Steps of his Father, being animated with 
a laudable, and pious Zeal for extending the Christian 
Religion, and also the Territories of our Empire, hath 
humbly besought Leave of Us, that he may transport, by 
his own Industry and Expense, a numerous Colony of 
the English Nation, to a certain Region, herein after de- 
scribed, in a Country hitherto uncultivated, in the Parts 
of America, and partly occupied by Savages, having no 
Knowledge of the Divine Being, and all that Region, with 
certain Privileges, and Jurisdictions, appertaining unto 
the wholesome Grovernment, and State of his Colony and 
Region aforesaid, may by our Royal Highness be given, 
granted, and confirmed unto him and his Heirs."" 
Strange to say, on the interpretation of the phrase hacte- 
nus inculta, hitherto uncultivated, contained in the fore- 
going preamble, depended in a great measure the future 
development of Maryland. If the words were to be 
strictly construed, the settlements made under the author- 
ity of any Christian prince on territory even included 
within the boundaries expressed in the King's charters, 
were to be held inviolate and those in possession to con- 
tinue undisturbed. 

The Maryland patentees held the phrase to be merely 
descriptive, and this appears to be the only tenable view. 
That Charles I, claiming sovereignty under the discov- 
eries of the Cabots, would have respected the Dutch 
claims to lands along the Delaware, is most improbable. 

" Macdonald, Select Charters, p. 54. 

19 



20 THE PENNSYLVANIA-MARYLAND 

Indeed, a little investigation into the actions of the Eng- 
lish government from 1616 onward, unmistakably points 
to the view that the Dutch settlers on both the Hudson and 
the Delaware were regarded as '' interlopers." 

The colonial charters, as a rule, consisted of the prem- 
ises, the movent clause, the habendum and tenendum 
clauses, the warranty clause, the penal clause, and the 
datal clause. The premises merely stated the name and 
the title of the grantee ; a description of the thing granted, 
and the reason for its bestowal. The movent clause ex- 
pressed the reasons for the grant, and often was incor- 
porated in the premises. The habendum and tenendum 
clauses defined the estate granted and the tenure by which 
it was held. 

The other clauses do not require our attention at this 
time. The first three, however, are very closely related, 
and often are merged one into the other. The premises 
naturally contain words of a general descriptive char- 
acter, and are developed and determined by the two suc- 
ceeding and specific clauses. In the Maryland charter, 
the words hactenus inculta appear only in the premises, 
and their absence from the other clauses of the instru- 
ment seems to prove the contention that they were simply 
words of qualification and not limitation. Yet it was 
exactly this phrase that afforded a loop-hole of escape 
for the Dutch commissioners who were sent to protest 
against Baltimore's title to Delaware. 

After the Dutch conquest of New Sweden, in 1655, that 
territory was divided into two provinces, Altona and New 
Amstel. Inasmuch as Delaware lay within the boun- 
daries granted in the Maryland charter, the governor of 
Maryland in 1659 sent Col. Nathaniel Utie to protest 
against the Dutch occupation. Stuyvesant, hearing of 
Utie's mission, sent two commissioners, Augustine Her- 
man and Eesolved Waldron, to present the Dutch claims 
of prior exploration and settlement. After examining the 
Maryland charter, the Dutch envoys seized upon the 



BOUNDARY CONTROVERSY 21 

phrase hactenus inculta, and strenuously maintained that 
it was intended as a limitation upon the territory granted 
to Calvert. Of course, such a latitude of view in regard to 
the interpretation of the famous phrase was warmly con- 
tested by the Maryland authorities, but the Dutch com- 
missioners were not to be outdone, for ''with exemplary 
gravity" they proceeded to trace the Dutch title back to 
Columbus, and as the rightful heirs of Spain, immediately 
claimed the whole coast. 

This was merely the first occasion that the phrase 
''hitherto uncultivated" was employed against the valid- 
ity of Lord Baltimore's title to Delaware. Even up to 
the present time the argument has constantly appeared in 
the writings of Pennsylvania historians, and in an article 
in the Pennsylvania Magazine of History, Mr. Scaife 
makes the following statement. "The Delaware Bay 
region was," he observes, "then (June 20, 1632) in the 
actual possession of the Dutch, and it is not to be sup- 
posed for a minute that, had Baltimore claimed the terri- 
tory at once, and the Dutch had resisted, Charles I would 
have risked a war with the Netherlands to put Baltimore 
into possession. On the whole, then, the natural con- 
clusion seems to be that hactenus inculta were words not 
of description merely, but in fact, of condition and 
limitation. ' '" 

In the first place, by June of 1632, Swaanendael, the 
only Dutch settlement west of the Delaware, which had 
been planted in April, 1631, had been destroyed, and 
the news of this event reached England in May, 1632. 
It is incorrect, therefore, to urge previous Dutch occu- 
pation at the date of the issuance of the charter to Cecil- 
ius Calvert in June, 1632. 

The Dutch claim to a legal title for the territory 
lying between the thirty-eighth and forty-first degrees 
of north latitude, was from the very first bitterly opposed 
by the English, and even if the settlement at Swaanendael 

^3 Penna. Mag. of Hist., pp. 241 et seq. 



22 THE PENNSYLVANIA-MARYLAND 

had not been destroyed by tbe Indians, it is not likely 
that Charles I would have allowed that occupation by the 
Dutch to influence the language of a charter. As early 
as 1620, the ''Pljnnouth Company resolved to lose no 
time in vindicating their claim of English title against 
the Hollanders, who as they alleged, as interlopers fell 
into the middle between Virginia and New England. ' '" 

At the instance of James I, the lords of his council sent 
a despatch (December 15, 1621) to Sir Dudley Carlton, 
the English ambassador, instructing him to protest 
against the unlawful occupation of New Netherland by 
the Dutch. The States General immediately adopted an 
evasive policy. Simulating complete ignorance of the af- 
fairs of New Netherland, which had been placed under 
the jurisdiction of the West India Company, they next 
essayed a system of dilatory tactics that consumed many 
months. First, they pleaded for time to investigate the 
charges presented by Carlton, and subsequently, accord- 
ing to a statement by Capt. John Mason, they declared 
that if any such settlement had been made in New Nether- 
land, it was planted without their authority. 

In discussing the English title to New Netherland, Dr. 
Brodhead allows his obvious sympathy for everything 
Dutch to cloud his judgment. He maintains that ''mere 
occupancy confers a good title by law of nations and 
nature," and that ''upon this principle the right of Spain, 
under the gift of Pope Alexander VI, was again denied. ' ' 
Subsequently he admits that the English title to Maine 
and Virginia was valid by right of exploration and dis- 
covery, but denies that such validity of title extended to 
territory between the thirty-eighth and the forty-first 
degrees of latitude. 

The right by "actual possession" was an excellent 
theory to employ against the English, but, strange to 
say, it appears to have lost weight entirely when applied 
to the Swedish settlements on the Delaware. Again, it 

^* Brodhead, History of New York, p. 140. 



BOUNDARY CONTROVERSY 23 

might be urged tliat the "presently existing" doctrine of 
** effectual occupation" was not formulated until the 
conference at Berlin in 1884, ' * when Germany waked up to 
the fact that the world had been almost wholly occupied 
while she had been busy in consolidating her national 
unity. ""^ 

As to Dr. Brodhead's allusion to the denial by Eng- 
land of the validity of "Pope Alexander's gift," a pass- 
ing observation will suffice. In the writings of a multi- 
tude of American historians, this "gift" of Pope Alex- 
ander is the object of not a little caustic comment. The 
injustice and absurdity of such views may be clearly seen 
when one realizes that the Papal Bull (May 4, 1493) fix- 
ing the line at 100 leagues west of the Azores, was 
entirely superseded by the Treaty of Tordesillas, June 
7, 1494. 

This treaty, concluded between Spain and Portugal, 
was purely a lay arrangement, and changed not only the 
measurement suggested in the Papal Bull, but also the 
point from which that measurement was to be reckoned. 
To say that European nations subsequently disregarded 
the partition line of Pope Alexander, is meaningless. The 
delimitation of the spheres of influence, as fixed by the 
Papal Bull, merely obtained for one year, and that par- 
tition line was not even indicated on contemporary 
charts. It was the line of 370 leagues west of the Cape 
Verde Islands (the line provided for by the aforemen- 
tioned treaty of Tordesillas) that was formally drawn on 
the maps of that time, but nevertheless the mythical line 
of Pope Alexander VI has not ceased to furnish Protes- 
tant historians an excellent opportunity for fuhnination. 

But to resume the narrative of the English claim to 
New Netherland, the next event of importance is the ar- 
rest of the Dutch ship Orange Tree at Plymouth in 1625. 
This action was brought about by the council for New 
England, who protested that the Dutch vessel was en 

^^a S. E. Dawson, Lines of Demarcation, p. 478. 



24 THE PENNSYLVANIA-MARYLAND 

route to engage in unlawful trading in "certain parts of 
the New World comprehended in the charter of 1620." 
The Orange Tree appears to have been detained for a 
short period and then released. 

In 1627, Isaac de Easieres, by order of Governor 
Minuit, despatched a letter of friendship to Governor 
Bradford of the Plymouth plantation. In his answer, 
Bradford expressed a desire to continue ''good neighbor- 
hood and correspondence" with the Dutch, but ques- 
tioned their title to the soil of New Netherland. This let- 
ter of Bradford caused some apprehension in New Am- 
sterdam, and a spirited answer was immediately returned 
by Minuit. After waiting three months, Minuit sent a 
special messenger to Bradford with the suggestion that 
friendly commercial relations might redound to the bene- 
fit of both parties." 

Bradford's reply, after the usual salutations, still in- 
sisted on the priority of English title to the territory of 
New Netherland, and warned Minuit concerning probable 
raids from Virginia traders. Nor was this the last time 
that Bradford questioned the Dutch title. On the return 
of Easieres in October, 1627, Bradford entrusted to him 
another letter of the same tenor. Indeed, so strongly and 
tenaciously had Bradford pressed the exclusive English 
title, that in November, 1627, tidings were brought be- 
fore the States General that "our settlers there [New 
Netherland] were menaced by the English at New Ply- 
mouth, who now wish to hunt them out, or disturb them 
in their quiet possession and infant colony. They, there- 
fore, ask the assistance of forty soldiers for their de- 
fense."" Thus it is seen that the Dutch were far from 
being peacefully planted in the valley of the Hudson. 
From the very first the English title had been stoutly 
maintained, and the Dutch occupation resented. 



1^ Brodhead, History of New Yorlc, p. 181. 
^^ Brodhead, History of New York, p. 181. 



BOUNDARY CONTROVERSY 25 

The next act of the English government shows still 
more clearly its view of the validity of the Dutch title. Be- 
sides, it is especially important because it occurred just 
previous to the granting of the charter to Cecilius Cal- 
vert, and shows that Charles I, even in the event of the 
continued existence of the colony at Swaaendael, would 
still have regarded Delaware as "plantable English 
territory. ' ' 

In 1632, Director Minuit was recalled by the West 
India Company. Leaving New Netherland in March 
of that year, he was compelled by stress of weather to 
seek refuge in Plymouth harbor. At the instance of 
Capt. John Mason, the Dutch ship, the Eemdragt, was 
attached on a charge of '' illegally trading within the 
king's dominions." When the news of this detention 
reached the Dutch ambassadors, they immediately has- 
tened to Newmarket to file their protest, and to demand 
the release of the attached vessel. The reply of Charles I 
is significant. He was informed as to the detention of 
the Eendragt, but inasmuch as the States General ''had 
interdicted their subjects from trading in those stations," 
he refused to grant even a provisional release." 

A lengthy and complicated wrangle then ensued, and 
the Dutch ambassadors in England requested the States 
General to furnish proof of their priority of title. This 
their home government attempted to do, emphasizing the 
discovery of the North River in 1609 ; the neglect of the 
English to occupy the territory between the thirty-eighth 
and forty-first parallels; and the charter of James I 
(1606) which "left this region open to the Dutch." 

It is not necessary to examine in detail this flimsy de- 
fense. Hudson was by no means the discoverer of the 
North River, and it is childish to suppose that the patent 
of 1606 left the territory from the Delaware and the Hud- 
son ' ' open to the Dutch. ' ' 

" Brodhead, History of New York, p. 216. 



26 THE PENNSYLVANIA-MARYLAND 

The note presenting the claims of the States Gen- 
eral was delivered by the Dutch ambassadors on May 5, 
and on May 22, the reply of Charles I was received. A 
careful perusal of the contents of this able paper should 
set at rest for all time the arguments based upon the 
phrase hactenus inculta. 

It plainly shows how Charles regarded the Dutch 
claims, and is undoubted proof that he intended this 
much-mooted phrase merely to be a qualification. In the 
first place, the answer of May 22 strongly asserts ''prior 
discovery, occupation and possession," and in conclusion 
pithily observes that "permission" would be extended to 
Dutch settlers if they would ' ' submit themselves as sub- 
jects to his Majesty's government."^* Indeed, so im- 
portant is this communication stating the territorial 
rights of England, that I shall take the liberty of quoting 
it in full. 

''The Dutch demand restitution of a certain ship, 
seized at Plymouth, on her return from a certain plan- 
tation by them usurped, north of Virginia, which, they al- 
lege, they acquired from the natives of those countries. 
It is denied, first, that the savages were possessors bonae 
fidei, of those countries, so as to be able to dispose thereof 
either by sale or gift, their habitations being changeable, 
(mouvantes), uncertain, and only in common. Secondly, 
it cannot be proved, de facto, that all the natives of said 
countries were parties to the said pretended sale. And 
as regards the allegation that the said natives have their 
abode around about them, the truth is, the English sur- 
round them on all sides, as they have already well discov- 
ered when they prosecuted the maintenance of their rights 
against them. But more than this: the rights belong- 
ing to his Majesty's subjects in that country are justified 
by first discovery, occupation, and possession which they 
have taken thereof, and by charters and letters patent 
obtained form our sovereigns, who, for these purposes, 

^* Brodhead, History of New York, p. 216. 



BOUNDARY CONTROVERSY 27 

were the true and legitimate proprietors there where 
the lords the states have not assumed to themselves such 
pretentions, and have not granted any charter to their 
subjects conveying in itself any title or power to them. 
"Which was proved in the year 1621, when the late king, 
of happy memory, on the complaint and remonstrance of 
the Earl of Arundel, of the knights Fer. Georges 
(Gorges), and Samuel Argall, and of Captain Mason, di- 
rected his ambassador to urge on their lordships, the 
States General, to prevent the departure of certain ves- 
sels which were preparing to proceed to the aforesaid 
country, and to forbid their subjects to settle in that plan- 
tation; for their answer was, that they knew nothing of 
said enterprise, which, indeed, appeared very probable 
because the said ambassador, after having informed him- 
self more particularly of the matter, assured his Majesty, 
in those letters, that it was only two companies of Am- 
sterdam, who, without the knowledge or advice of the said 
lords, the State General, had commenced a traffic between 
40° and 50°, in the limits of his Majesty's plantation, to 
the said countries of Virginia, and had given to those 
places there the names of New Netherland, Texel, Vlie- 
land, etc., and sent ships of thirty and forty lasts to these 
regions in search of peltries ; but that they had not 
learned that they had yet commenced, or meditated to 
establish a plantation there ; and, moreover, that a goodly 
number of families, inhabitants of the said United Prov- 
inces, had then been soliciting him to procure for them a 
spot in the said country where they could dwell among his 
Majesty's subjects. That now if those who are returned 
from there, and the others who have remained behind, 
wish to make a similar petition, and to submit themselves 
to his Majesty's government, as his Majesty's subjects, 
they may know if it shall please him to admit them in 
that quality, and thus permit them to proceed thither 
with their ships and merchandise, or to sell them here at 
the highest price ; provided that their lordships the States 



28 THE PENNSYLVANIA-MARYLAND 

shall prevent tliem from proceeding thither any more, 
of frequenting in any manner those regions. To which, if 
they do not consent, his Majesty's interest will not per- 
mit him to allow them thus to usurp and encroach on one 
of his colonies of such importance, which he has great 
cause to cherish and maintain in its integrity. 

By these replies to the aforesaid complaints, their 
lordships the States General will understand how little 
ground they have to enter on their neighbor's territory, 
in defiance of any alienation thereof by his Majesty. "^^ 



" O'Callaghan, History of New Netherland, pp. 135-136; also Cal. of State 
Papers, America and West Indies, 1575-1660, p. 27. 



CHAPTER III 
PENNSYLVANIA 

In 1676, William Penn was appointed one of the 
trustees for the bankrupt Quaker, Edward Byllinge, and 
in the course of the next few years so improved his posi- 
tion that he became one of the proprietors of West Jer- 
sey. In 1682 the trustees for the Carteret estate sold 
East Jersey to twelve Quakers, and once more we find 
mention of William Penn. 

But the Jerseys, it seems, did not appeal to Penn as 
territory in which Quaker ideals and theories might bear 
proper fruition. There were too many warring elements, 
and so that young cavalier-Quaker looked with longing 
eyes on the fair lands to the west of the Delaware. As 
sole proprietor of a province, Penn wished, untrammeled, 
to work out his theory of an ideal government ; a govern- 
ment to be based largely upon the theories of Locke, of 
Harrington, and of Algernon Sydney. 

It was to be a *'holy experiment, and profit was a sec- 
ondary consideration." Penn, however, was not the only 
proprietor to possess lofty ideals, though Professor 
Andrews in his valuable work, Colonial Self -Government, 
makes the following statement. In speaking of Penn, he 
observes that "he wished to found a colony for his fellow 
Quakers, to try a new and holy experiment in govern- 
ment, and in person to build up the new settlement. Since 
the days of the Massachusetts Bay Colony there had been 
among the various proprietors and patentees no example 
of motives such as these. "-° One is puzzled to know 
whether the prejudice of this distinguished scholar pre- 
vented a due acknowledgment of the splendid services of 
the Calverts, or whether the facts concerning an experi- 
ment not less ''holy" were deemed unworthv of mention. 



2« Colonial Self-Government, p. 168. 

29 



30 THE PENNSYLVANIA-MARYLAND 

In June, 1680, Penn presented a petition to Charles II 
for ^'a tract of land in America lying north of Mary- 
land; on the east bounded by the Delaware Eiver; on 
the west limited as is Maryland, and northward to extend 
as far as plantable. "^^ This grant was not prayed for 
as a settlement of royal indebtedness to Penn's father. 
That obligation had been removed from the shoulders 
of Charles II by the "Stop" of the Exchequer in 1672, 
and the province of Pennsylvania was bestowed merely 
as a means of extricating Penn from his financial diffi- 
culties. As late as 1698, in writing to a friend, he ob- 
served : ' ' Had I pressed my own debts with King James, 
that his brother owed me, there had been sixteen thousand 
pounds."^- Therefore, though Penn had received a prov- 
ince imperial in extent, he still considered the debt unpaid. 

Penn's petition was referred to the Lords of Trade 
and Plantations, and was entered on their Journal, June 
14, 1680. The minutes of their deliberations show that 
the chief difficulties in the way of the grant solicited, were 
the holdings of the proprietors, Charles Calvert, and 
James, Duke of York. Copies of this petition were 
ordered "to be sent to Sir John Werden, on behalf of 
the Duke of York, and to the agents of Lord Baltimore, 
to ascertain how far Mr. Penn's pretensions may con- 
sist with the boundaries of Maryland and New York."^^ 
On June 23, 1680, answers were received from the 
agents of both the Duke of York and Lord Baltimore. On 
behalf of the former, Sir John |Werden maintained the 
priority of the title of the Duke, and protested against 
the inclusion of Newcastle and the Lower Counties in 
any patent to be granted to Penn. 

In the interest of Lord Baltimore, Barnaby Dunch 
and Richard Burke, request that ' ' if the grant of land to 
Mr. Penn be passed, it may be expressed to be of land 



" Cal. of State Papers. Col. 1677-1680. 1390. 
** Andrews, Colonial Self-Government, p. 169. 
23 Cal. of State Papers. Col. 1677-1680. 1390. 



BOUNDARY CONTROVERSY 31 

that shall lie north of the Susquehannah Fort and north of 
all lands in a direct line between the said fort and Dela- 
ware River, and also north of all lands upon a direct 
line westward of the said fort ; for that fort is the bound- 
ary of Maryland northward. ' "* On June 25, 1680, Penn 's 
petition was again considered by the Lords of Trade and 
Plantations, and being summoned, Penn agreed "that 
the Susquehannah Fort shall be the bounds of Lord Bal- 
timore's province. "^^ 

It is evident that much depended on the location of 
the said Susquehannah Fort. In 1661, a solemn treaty 
was concluded between the Susquehannah Indians and 
Governor Philip Calvert. The stipulations provided for 
mutual assistance in time of war, and Governor Calvert 
agreed to despatch fifty men to build a block-house for 
the protection of the tribe. This provision was faith- 
fully executed, and the fort was erected close to the 
fortieth parallel. 

In 1670, Augustine Herman completed a map which, 
during several years, he had been making for Lord Bal- 
timore, and in 1673 it was engraved in London by W. 
Faithorne. As shown by this survey, the Susquehannah 
Fort is located exactly on the fortieth parallel. Now, 
when Penn agreed to have a line north of the Susque- 
hannah Fort as his southern boundary, it is rather cer- 
tain that he took the precaution to ascertain the exact 
location of that important block-house. If he did not, 
then he was liable for his own negligence for undoubtedly 
the agents of Calvert had a copy of this map when they 
answered the summons of the Lords of Trade and Plan- 
tations in regard to the boundaries of Maryland.^^ 

But, strange to say, the existence of a chart so accu- 
rate appears to have been generally unknown, for in 
November, 1680, Sir John Werden, secretary to the Duke 

24 Cal. of State Papers. Col. 1677-1680. 1404. 
2* Cal. of State Papers. Col. 1677-1680. 1409. 

*« A copy of this map may be seen on page 134, Maryland Fund Publica- 
lions, 30-34. 



32 THE PENNSYLVANIA-MARYLAND 

of York, addressed a very significant letter to William 
Blatliwayt, secretary to the Lords of Trade and Planta- 
tions. It discussed tlie proposed grant to Penn, and as 
to tlie uncertainty relative to the fortieth degree says: 
' ' I believe descriptions of lines of longitude and latitude 
are very uncertain, as also under what meridian the head 
of Delaware Eiver lies, which I believe has never been 
surveyed by any careful artist. The Duke's intention is 
that Mr. Penn's grant be bounded on the east side by the 
Delaware River, and that his south limit be twenty or 
thirty miles beyond Newcastle, which extent northward 
of Newcastle we guess may reach as far as the beginning 
of the fortieth degree of latitude. If, therefore, Mr. 
Penn's patent be so worded as to leave Newcastle and 
twenty or thirty miles beyond it free with the Delaware 
Eiver for the eastern boundary, I think this is all the 
caution necessary, for the Duke does not concern himself 
how far north or west Mr. Penn's patent extends."" 

But Penn feared that twenty or thirty miles above 
Newcastle would not afford him adequate shipping facili- 
ties on the Delaware, therefore he promptly informed Sir 
John Werden that he thought the fortieth parallel would 
cross about twelve miles to the north of that town. The 
substance of this interesting conversation between Sir 
John and Penn is contained in the following letter from 
the former to William Blathwayt. ''Mr. Penn having 
fallen into discourse with me of his concerns in America 
since I wrote to you on Saturday, I have told him the 
substance of what I wrote, and he seems to fear that if 
his south limits be strictly set as twenty or thirty miles 
north from Newcastle town, he shall have so little of the 
river left as very much to prevent the hopes he hath of 
improving the rest within his patent; but on the other 
side he is willing that twelve English miles north of New- 
castle be his boundary, and believes that distance will fall 
under the beginning of the fortieth degree of latitude. 

" Cal. of State Papers. Col. 1677-1680. 1599. Italics are mine. 



BOUNDARY CONTROVERSY 33 

I have already signified to you all that I know of the 
Duke 's mind herein, which is in general to keep some con- 
venient distance from Newcastle northward for a bound- 
ary to the Colony; but I confess I do not understand why 
'tis precisely necessary to insist on just such a number 
of miles more or less in a country of which we know so 
little, and when all the benefits are intended to the pat- 
entee that others enjoy, so as I submit this point to their 
Lordship's consideration, and do not think it material to 
add more at present. "'« The genesis of the twelve-mile 
circle around Newcastle is thus explained, and the Duke 
of York appeared content that the northern boundary 
of his Delaware colony should be so determined. 

The proposed charter was now submitted to Lord 
North, Chief Justice of the Court of King's Bench. That 
noble jurist, thereupon, ignoring the agreement relative 
to the Susquehannah Fort ''because the notice sent was 
merely formal," drew the patent to suit himself. 

It is somewhat puzzling that Lord North in drawing 
the Pennsylvania charter in accordance with Penn's 
wishes as to the twelve-mile circle about Newcastle, 
should have pointedly disregarded the agreement con- 
cerning the Susquehannah Fort merely because the notice 
sent Baltimore's agents was only "formal." If North 
believed that the fortieth parallel would actually run 
twelve miles to the north of Newcastle, why was there 
any need of disregarding the agreement? It seems prob- 
able that Penn had seen the map of Augustine Herman, 
and perceiving that the fortieth parallel was some twenty- 
five miles above Newcastle, instructed North "to ignore" 
an agreement which was supposed to have been made in 
all good faith. 

In this place it may be advisable to examine an argu- 
ment that Penn subsequently advanced against Balti- 
more's title to the territory about Newcastle. This was 
the clai m that inasmuch as Baltimore's charter merely 

" Cal. of State Papers. Col. 1677-1680. 1603. 



34 THE PENNSYLVANIA-MARYLAND 

provided for lands lying under the fortieth degree of 
north latitude, it was the intention of Charles I to grant 
to George Calvert only the territory included within one 
degree of latitude. That is to say, Penn asserted that the 
clause in the Maryland charter fixing Baltimore's north- 
ern boundary as the land which 'Uyeth under the fortieth 
degree of North latitude" expressly excluded all the 
territory within the fortieth degree itself. This claim, 
advanced only after the struggle over the boundaries had 
grown bitter, requires but a brief discussion. First, 
when Penn was summoned to appear before the Lords 
of Trade and Plantations in answer to his petition for 
lands in North America, he was informed by the Com- 
mittee that Calvert's charter provided for two degrees of 
latitude. Then he was asked whether he would not be 
satisfied with the gift of three degrees of latitude, where- 
upon the future proprietor stated that he was content to 
submit ''the how and what to the Board. "^® Now the 
King's letter of August 19, 1682, explicitly recommends 
that Lord Baltimore shall ''set down his northern bound- 
ary with Penn by an admeasurement of the two degrees 
contained in his patent. ' ' This royal communication was 
written at the suggestion of Penn, and shows that before 
his first visit to Pennsylvania, the celebrated Quaker 
leader considered Baltimore's patent to include at least 
two degrees of latitude. 

Moreover, the language of the Maryland charter 
proves that two or more degrees of latitude were pro- 
vided for. After declaring that Baltimore's boundary 
line is to extend northward to that part of Delaware Bay 
which "lyeth under the fortieth degree of north latitude," 
the charter describes the northern boundary as extend- 
ing westward "in a Right Line by the degree aforesaid 
unto the true meridian of the first fountain of the Eiver 
of Pattowmaek." Hence, it is clear that Calvert's terri- 
tory was meant to include the entire fortieth degree, for 

^^ Cal. of State Papers. Col. 1681-1685. 1179. 



BOUNDARY CONTROVERSY 35 

the end of the thirty-ninth parallel does not touch the 
"first fountain" at all, but crosses the Potomac about 
half-way between its mouth and its source. It is apparent 
that Penn's contention as to his right to the whole of the 
fortieth degree was not considered until after the dis- 
covery of the exact location of the fortieth parallel. It 
was a claim that discredited his own statements, and 
his eagerness to present arguments so questionable can 
hardly be edifying to the admirers of the first proprietor 
of Pennsylvania. 

Soon after Penn's charter had passed the seals, his 
cousin, William Markham, was sent to the province as 
deputy governor. He arrived in Delaware in July, 1681, 
and some time in August, visited Baltimore at St. 
Mary's. Here he was taken dangerously ill, and re- 
mained under Lord Baltimore's care until the following 
September. Upon his departure, he promised to meet 
Lord Baltimore in October to settle the question of 
boundary lines. At the appointed time Markham was 
seized with a second attack of illness, and wrote to Balti- 
more that it would be impossible to fix the respective 
boundaries until the next spring. 

Meanwhile, on September 16, 1681, Penn had written 
a letter to six prominent citizens of Baltimore and Cecil 
Counties, cautioning them against paying any further 
quit-rents to Lord Baltimore. He assured them that 
their holdings lay within his grant, and that they would 
find "his" government "easy, free, and just." Hearing 
of this artful letter, Baltimore redoubled his efforts to 
catch Markham, and after an exciting chase of over a 
year, finally, on September 24, 1682, overtook him at Up- 
land (Chester). 

Now it happened that upon Markham 's departure for 
Pennsylvania, he was entrusted with two letters ; one an 
unctuous missive from Penn to Baltimore, the other, a 
letter from the King ordering a speedy adjustment of the 
boundaries. In conclusion, the royal mandate ordered 



36 THE PENNSYLVANIA-MARYLAND 

Lord Baltimore to appoint ''with all convenient speed 
some person or persons to meet the agents of William 
Penn to define the boundaries of Maryland and Penn- 
sylvania, according to our letters Patent.'"" 

In contravention of the express command of his 
Majesty's letter, Markham had sought to postpone the 
meeting as long as possible. In a letter dated March 
11, 1682, Lord Baltimore complains to William Blathwayt 
of the delay in the settlement of the boundaries, and gives 
the probable reason for Markham 's studied procrasti- 
nation. ''I am privately assured," he says, ''that a 
friend sent over by Penn has privately taken observa- 
tions at the head of the bay, and now gives out that, if 
William Penn be mistaken in the assurances given him 
by masters of ships, that the line would fall very low in 
Maryland, he must then be compelled to purchase a port 
of Baltimore, or their ships must enter and clear in 
Maryland. "^^ 

The language of his Majesty's letter of April 2, 1681, 
is also worthy of notice. Lord Baltimore shall appoint 
"with all convenient speed, some person or persons to 
meet the agents of William Penn to define the boundaries 
of Maryland and Pennsylvania according to our Letters 
Patent." As the "letters patent" expressly state that 
Lord Baltimore's northern boundary is the fortieth de- 
gree, this letter of his Majesty virtually confirms the 
Charter of 1632. 

At the first meeting between Lord Baltimore and 
William Markham, Penn's agent showed no haste con- 
cerning the boundary adjustment. He claimed that the 
glasses of his sextant had been lost, and it was only with 
a great deal of difficulty that an observation could be 
taken, and that, with a borrowed instrument. It was 
clearly demonstrated that Upland is about twelve miles 



30 Cal. of State Papers. Col. 1681-1685. 62. 

31 Cal. of State Papers. Col. 1681-1685. 437. 



BOUNDARY CONTROVERSY 37 

south of the fortieth parallel, and Markham was so dis- 
mayed by this discovery that he refused to assist in any 
further observations. 

But before passing on to a consideration of the fruit- 
less negotiations between Penn and Baltimore, I shall 
give a short account of the manner in which Penn ac- 
quired the Lower Counties. On March 12, 1664, Charles 
II, by letters patent under the great seal, granted to his 
brother James, Duke of York, ' ' all that part of the Maine 
land of New England extending from the St. Croix Eiver 
westward to Pemaquid and the Kennebec, and northward 
to the River of Canada, together with Long Island and 
the lands from the West Side of the Connecticut (River) 
to the East Side of Delaware Bay. ' "^ 

A glance at the terms of this conveyance, reveals the 
fact that the Dutch colony of New Netherland was in- 
cluded within the limits fixed by this instrument. The 
English government had always disputed the Dutch title 
to the land between the thirty-eighth and forty-first paral- 
lels, and the grant to the Duke of York was merely for 
territory that, from the date of James' patent of 1606, 
had been claimed by England. 

During March, 1664, the Duke of York appointed Col. 
Richard Nicolls as Deputy Governor of his lands in New 
England, and commissioned Sir Robert Carr, Col. George 
Cartwright, and Samuel Maverick to assist him in the re- 
duction of New Netherland. In order to insure the con- 
quest of the Dutch possessions, the Duke provided three 
war vessels, a hired transport, a few hundred soldiers, 
and the sum of £4,000. 

Stuyvesant, the colonial Dutch governor, had received 
ample warning of the impending attack, and the burghers 
of New Amsterdam, assisted by the negroes of the West 
India Company, were compelled to erect fortifications. 
New Amsterdam was, however, really indefensible, and 
from the outset the inhabitants realized the fact. Shortly 

" Macdonald, Select Charters, p. 127. 



38 THE PENNSYLVANIA-MARYLAND 

after the arrival of NicoUs in New England, John Win- 
throp sent a letter to Stuyvesant setting forth the terms 
that would be granted to the inhabitants if they would 
submit to British authority. 

Upon receipt of this conciliatory message, Stuyvesant 
flew into a great rage, tore the letter into bits, and 
swore that he '"had much rather be carried out dead than 
surrender." But he was not supported by the burghers, 
and on September 5, was seized and forcibly restrained 
from firing on the English vessels lying off Manhattan 
Island. On September 8, 1664, New Amsterdam was sur- 
rendered, and the territory passed into the possession of 
the Duke of York. 

Although the Duke's patent specifically limited his ter- 
ritory to land ''east of Delaware Bay," nevertheless Sir 
Robert Carr was sent to reduce the Dutch and Swedish 
settlements situated on the west side of the Delaware. 
It appears that the seizure of the Delaware province was 
in the mind of the Duke even before the expedition left 
England, for Sir Robert Carr was instructed to inform 
Lord Baltimore and his agents that ''their pretended 
rights being a doubtful case, possession would be kept 
until his Majesty is informed and otherwise satisfied. "^^ 
On the 10th of October, Newcastle was stormed, and the 
Duke of York assumed control of the Lower Counties as 
an appendix to New York. 

It is evident that the Duke of York possessed no legal 
title to Delaware, and his attorney admitted that the title 
of his noble client was not conveyed in his charter, but 
merely rested "on the King's acquiescence."^* Even as 
late as 1677 the validity of the Duke's title was ques- 
tioned. In a letter of that year. Sir John Werden, secre- 
tary to the Duke of York, makes the following significant 
observation: "If he [Andros, Governor of New York] 
come for England next autumn, will see what can be 



'^ Brodhead, History of New York, p. 744. 

'* Shepherd, Proprietary Government in Pennsylvania, p. 119. 



BOUNDARY CONTROVERSY 39 

further done; would be glad it [Delaware] were con- 
firmed in the Duke 's possession by a better title. ' "° 

The question of title to Delaware was destined to be 
further confused by its grant to William Penn. On Au- 
gust 24, 1682, this Proprietor obtained from the Duke of 
York, deeds of enfeoffment for the country around New- 
castle and the three Lower Counties. The Duke 's title be- 
ing admittedly defective, be obtained from his royal 
brother an express grant of the territory in question, and 
immediately transferred the instrument to Penn as se- 
curity until there could be effected a further confirmation 
of the deeds of enfeoffment. Some time after this grant 
of March 22, 1683, the Duke of York executed a release, 
and applied to his brother for a more ample grant. This 
second application was defeated by a counter petition 
from the agents of Lord Baltimore, and even though the 
decision of the Lords of Trade and Plantations confirmed 
the Duke in his possession of the Lower Counties, the 
second instrument never passed the seals. The first 
patent, therefore, was still valid, and Penn held the Dela- 
ware country under the grant of March 22, 1683. 

Of course, the equity of the whole transaction is open 
to question. In the first place, Penn petitioned for, and 
gladly received lands to which the Duke of York had no 
legal title. Secondly, when Penn was asked concerning 
the illegal transfer of the Lower Counties, he adopted an 
evasive and disingenuous policy, and through his unceas- 
ing activity, and the constant use of the Duke of York's 
name in all the hearings, strongly influenced, in 1685, the 
decision of the Committee of Council. 

In this transfer of the duke to Penn, there is also in- 
volved an interesting legal question. Did the Duke 's con- 
veyance carry with it the rights of government whicli 
Penn immediately assumed I From the time of Edward I, 
''the right to institute government was, according to 
English law, a prerogative right inherent in the crown 



" Cal. of State Papers. Col. 1677-1680. 



40 THE PENNSYLVANIA-MARYLAND 

which could only be conveyed to others than the King by 
his express grant and patent. ' '^® In the Jerseys the same 
question had arisen in connection with the rights of the 
grantees, Carteret and Berkeley, and, as in the Jerseys, 
the transaction between the Duke of York and William 
Penn was purely personal. ' * In such a transaction a pre- 
rogative right could scarcely be conveyed. ' '" Therefore, 
it is clear that Penn's assumption of governmental powers 
in the Lower Counties was without legal warrant. 

In the latter part of October, 1682, Penn appeared at 
Newcastle, and demanded possession of the colony. This 
was immediately granted, and the presentation of a por- 
ringer of water from the Delaware, then a piece of turf 
and a broken branch, fulfilled the ancient fuedal custom 
of delivery of seisin. On the 2d of November, Penn wrote 
from Newcastle asking Lord Baltimore to appoint a place 
for a conference. Accordingly, on the 13th of December,, 
the proprietors met at the house of one Col. Thomas Tail- 
ler, in Anne Arundel County. After an exchange of f orm- 
alties, Penn presented to Baltimore a new letter from 
his Majesty, Charles II. This was dated August 19, 
1682, and "recommends that Lord Baltimore take Wat- 
kins Point as his southern boundary, and as soon as possi- 
ble set down his northern boundary with Penn by an ad- 
measurement of the two degrees granted in his patent, 
sixty miles to a degree, from the southern boundary as 
already settled. ' "^ It is evident that this was very differ- 
ent from his Majesty's letter of April 2, 1681, and clearly 
shows the adroit management of Penn. 

After a careful perusal of this second letter, Baltimore 
refused to abide by its directions. The King, he stated, 
had been ''misinformed," and in proof of his contention 
he read the terms of the Maryland charter. In that in- 
strument there was no mention of an "admeasurement" 



'' Tanner, Province of New Jersey, p. 125. 
*^ Tanner, Province of New Jersey, p. 125. 
^'^ Cal. of State Papers. Col. 1681-1685. 659. 



BOUNDARY CONTROVERSY 41 

of degrees, and Baltimore declined to allow the King's 
letter to take precedence over the royal charter. That he 
was justified in this stand, is, of course, self-evident, for 
Penn himself admitted that probably he would have 
adopted a similar course. 

Perceiving that the King's letter was displeasing to 
Baltimore, Penn agreed to waive the royal mandate if 
Baltimore would accept certain proposals. The first of 
these was a request to ascertain, by a measurement taken 
from some well known point, the boundaries, existing be- 
tween the two provinces. The Capes, Penn observed, had 
long been reckoned to lie about 37° 5', and he suggested 
an admeasurement from them. From this suggestion 
Baltimore dissented, saying that inasmuch as his northern 
boundary was fixed at the fortieth degree, there was no 
better way of ascertaining it than by the employment of a 
sextant. But Penn was firm in his resolve to have the 
measurement begin at some familiar point, and he asked 
Baltimore to take Watkins Point as his southern bound- 
ary, and measure northwards two and one-half degrees. 
This suggestion clearly sprang from Penn's ignorance of 
the exact location of Watkins Point. He had long been 
convinced that Baltimore had encroached upon Virginia 
territory, and that Watkins Point was about 37° 30' or 
even lower. As a matter of fact, Watkins Point lies close 
to the thirty-eighth parallel, and two and one-half de- 
grees, at the old computation of sixty miles to each 
degree, would have placed the boundary line north of 
Philadelphia. Of such a result, Penn had no idea, and 
it is to be regretted that Baltimore did not accept this 
proposal. 

There is another point to be noticed in this interview 
between Penn and Baltimore — Penn's exhibition of dis- 
ingenuousness. Before leaving England, he had received 
from the Duke of York, the Newcastle colony and adjoin- 
ing lands. To this tract the Duke had not the shadow of a 
legal title, and no one appreciated that fact better than 



42 THE PENNSYLVANIA-MARYLAND 

William Penn. He had been advised that his southern 
boundary was far too high to afford shipping facilities on 
the Delaware, so he determined to lay aside his scruples 
and at any cost to acquire possession of the Lower 
Counties. 

Through his influence with the Duke of York, the 
transfer of the Newcastle colony was easily effected and 
upon his arrival, the famous Quaker at once assumed con- 
trol of the government. He had, however, already as- 
sured Lord Baltimore that on no account would he be dis- 
turbed in his possession of the Delaware tract, and both 
Penn's breach of trust and his evasiveness are clearly 
shown in this conference of 1682. After the King's letter 
had been read, and while the question of the respective 
boundaries was being discussed, Baltimore asked Penn 
to explain his actions in regard to his occupation of the 
Lower Counties. 

Baltimore : ' ^ May I ask, have you purchased the Duke 
of York's claims on the Delaware?" 

Penn: ''I have them, on conditions by his gift. But 
we wander from the point, namely, our boundary. ' ' 

Baltimore: *' I remember, Mr. Penn, that you once told 
me, in England, that you had refused all offers of the 
Duke of York's claims on the Delaware, as you knew that 
in reality they were mine. I hear that you have now 
taken them ; may I ask upon what grounds 1 ' ' 

Penn: ''Pray, Lord Baltimore, let us settle one thing 
at a time. ' '^® 

Inasmuch as the whole province of Delaware falls 
below the fortieth parallel, it is difficult to see how it 
could be excepted from any discussion relative to bound- 
ary lines. 

After three days of useless wrangling, the conference 
dissolved. Nothing had been accomplished, and a second 
meeting was arranged for the next spring. In the latter 
part of May, 1683, Lord Baltimore journeyed to Newcas- 



3» Cal. of State Papers. Col. 1681-1685. 849. The italics are mine. 



BOUNDARY CONTROVERSY 43 

tie, where the entire question as to proper boundaries was 
reviewed. Penn had now become thoroughly apprehen- 
sive as to the future development of his province, and he 
regarded the possession of a suitable harbor on the Dela- 
ware as vital. It is true that he had assumed control of 
the Newcastle colony and the territory as far as Cape 
Henlopen, but his title, derived from the deeds of enfeoff- 
ment from the Duke of York, was of very doubtful 
legality. Moreover, Lord Baltimore claimed the Lower 
Counties under the terms of his charter, and the question 
would have to be decided by the Committee of Lords of 
Trade and Plantations. 

Again, the northern limit of the Delaware colony was 
set at twelve miles northward of Newcastle. It had been 
clearly demonstrated by observations taken with a sex- 
tant, that the fortieth parallel is some twenty miles to 
the north of Newcastle, and to the intervening territory 
(between twelve miles about Newcastle and the fortieth 
degree) Lord Baltimore had a strong title. An admis- 
sion of his title to this intervening strip would sever 
Penn's province, thus making communication more diffi- 
cult, and creating numerous other disadvantages. 

Penn had reflected upon this problem for some time, 
and finally adopted an expedient that does credit to his 
ability to extricate himself from embarrassing situations. 
This was a request made to the Committee on Trade and 
Plantations, to reckon the degrees contained in Balti- 
more's patent at sixty miles to each degree. To appre- 
ciate the astuteness of this request, one must consider 
the geographical knowledge of that time. Throughout the 
early part of the seventeenth century, parallels of latitude 
were still thought to be sixty miles in width. Newton 
himself had been led astray by his erroneous calculation, 
and the apparent contradictions in many of his experi- 
ments caused the philosopher no end of bewilderment. 
Science, however, was making rapid strides, and before 
1670, R. Norwood and W. Snell had made notable contri- 



44 THE PENNSYLVANIA-MARYLAND 

butions to astronomical science. Picard, the celebrated 
French astronomer, was another scientist who evinced in- 
terest in parallels of latitude, and to him belongs the 
credit of first calculating the true width of a degree of 
latitude. In 1672, Oldenburg read a paper before the 
Eoyal Astronomical Society, setting forth the results of 
Picard 's observations, and it was then that Newton re- 
ceived a new inspiration and had his previous contradic- 
tions satisfactorily explained. 

It is evident, therefore, that when the Pennsylvania 
charter was granted, in 1681, the true width of degrees of 
latitude was generally known. Scaif e, in his article on 
the Pennsylvania-Maryland Boundary Dispute, asserts 
that it was not until 1682 that Newton received knowledge 
of the true width of a degree, and also that it was not until 
that year that the results of Picard 's calculations were 
known to the Eoyal Astronomical Society. It is hardly 
necessary to say that these assertions are groundless, 
and are founded on an article contained in the ninth edi- 
tion of the Encyclopedia Britannica.*'^ 

Undoubtedly Penn was aware of the progress that was 
being made in astronomical science, and the King's letter 
of August 19, 1682, drawn up at Penn's suggestion, is a 
very clear illustration of this knowledge. He hoped that 
by a strict admeasurement of the two degrees which he 
claimed were provided for in Baltimore's charter, he 
would gain ten miles in each degree, and in this way obvi- 
ate the danger of a separation of his province. 

At the second meeting between the proprietors, this 
question of a strict computation of degrees arose, and 
Penn, in a letter to the Lords of Trade and Plantations, 
broaches his scheme to gain twenty miles of territory at 
the expense of Lord Baltimore. He justifies himself by 
maintaining that inasmuch as degrees of latitude were 
supposed (at the time of the granting of the Maryland 
charter) to contain but sixty miles, therefore. Lord Balti- 



*" Penna. Mag. of Hist. Vol. 9, 267. 



BOUNDARY CONTROVERSY 45 

more should be satisfied with the older computation no 
matter how erroneous it might be. ''Perceiving," says 
Penn, "that my pressing the King's letter was uneasy to 
him, and being resolved to dispose him with all softness 
to a friendly arrangement, I waived the two degrees and 
pressed the next part of the letter, only, viz., the admeas- 
urement ; for though it were two degrees and a half from 
Watkins Point to the fortieth parallel, yet let it be meas- 
ured at sixty miles to a degree, and I would begin at forty, 
fall as it might. My design, was that every degree being 
seventy miles, I should get all that was over sixty— the 
proportion intended for Lord Baltimore by his patent and 
the computation then assigned to a degree."" 

It is apparent that in Penn's case the wish was 
father to the thought. He was extremely anxious to 
secure every advantage, and, as will be related, his New 
Jersey transactions had proved him a disingenuous and 
skillful pleader. For a second time he was engaged in 
a struggle, which, from a legal standpoint appeared hope- 
less, and for a second time he emerged victorious. 

It was a very ingenious argument to maintain that, in- 
asmuch as degrees of latitude were reckoned at sixty 
miles to each degree at the time of the granting of the 
Maryland charter, therefore, Baltimore should be held 
to the ancient computation. Penn, in his fight for a har- 
bor on the Delaware, claimed that even though a strict 
computation of the terms of his charter would not allow 
him this privilege, yet it had been the ''intention" of 
Charles II to convey adequate shipping facilities to him, 
and for that reason he should be given a harbor on the 
Delaware. 

Scaife, who seems to hold a brief for Pennsylvania, 
also inclines to this theory as to the "intention" of the 
royal grantor. In support of his contention, the Penn- 
sylvania historian quotes Vattel: "It is a general rule 
of interpretation of written documents that since the law- 



*^Cal. of State Papers. Col. 1681-1685. 1179. Italics are mine. 



46 THE PENNSYLVANIA-MARYLAND 

ful interpretation ought to tend only to the discovery of 
the thoughts of the author, as soon as we meet with any 
obscurity, we should seek for what was probably in the 
thoughts of those who drew it up, and to interpret it 
accordingly."*^ 

But this principle is double-edged. Undoubtedly it 
was the ''intention" of Charles I to grant Calvert at least 
two degrees of latitude. There was no question as to the 
number of miles contained in the grant, and it is unde- 
niable that, if shortly before the passage of the charter 
the proper width of a degree had been ascertained, 
Charles I would still have passed the charter as it stood. 
Clearly, Calvert was entitled to at least two degrees, and 
when science demonstrated that each degree is approxi- 
mately seventy miles, it appears self-evident that this new 
admeasurement should inure to the benefit of the proprie- 
tors whose provinces bordered on lands which had not 
as yet been granted away by the King. 

Of course, this would not be so if the strip of territory 
along the Atlantic Coast had been thickly settled. It 
would have been impossible to alter the boundary lines of 
a number of colonies. This would have created a highly 
disastrous border warfare, and the difficulties in making 
an equitable adjustment of the later boundary lines would 
have been insuperable. But in the case of Maryland, 
conditions were highly favorable for a satisfactory set- 
tlement, and it is certain that if the boundary lines had 
been drawn in accordance with the new computations, the 
territory of no other patentee would have been affected. 
The Pennsylvania charter was not granted until March 4, 
1681, nine years after the results of Picard's calculations 
had been read before the Royal Astronomical Society. 
Penn had agreed to take the line running north of the 
Susquehannah Fort as his southern boundary, and by the 
map of Augustine Herman, this fort was shown to lie 
close to the fortieth degree. Furthermore, the observa- 



♦2 Penna. Mag. of Hist. Vol. IX, p. 265. 



BOUNDARY CONTROVERSY 47 

tions taken by Herman were made with a sextant, and this 
fact sets at rest all doubts relative to the exact location of 
the fortieth parallel. 

Again, the King's letter of April 2, 1681, specifically 
states that the agents of Baltimore and Penn shall ''meet 
with all convenient speed to define the boundaries of 
Maryland and Pennsylvania according to our letters pat- 
ent." It is significant that there is no mention made in 
this letter of the fact that degrees of latitude were to be 
reckoned at sixty miles each, and the unmistakable impli- 
cation is that Lord Baltimore is to enjoy the benefits of 
the exact computation of a degree. Indeed, to the student 
of this controversy, it is plain that in this matter Penn 
appears in the light of an opportunist, and only advances 
the argument of ancient computation in order that he 
might prevent a separation of his province. Doubtless, if 
a commodious harbor had been situated on the upper Del- 
aware, this plea of Penn would never have been heard. 

After the two conferences (December, 1682 and May, 
1683) had proved fruitless, it was evident that the determ- 
ination of the boundaries would have to be made by the 
Lords of Trade and Plantations, to whom were referred 
all questions relating to colonial administration. There- 
fore, it was before this committee that the hearings in the 
Penn-Baltimore case were held. 

In May, 1683, the Lords of Trade and Plantations 
received the petition of Richard Burke (agent of Lord 
Baltimore) praying that "a grant which is passing to the 
Duke of York of the parts adjacent to Delaware Bay be 
delayed, till the King is satisfied as to the territory 
granted to Lord Baltimore."*^ It will be remembered that 
the Duke of York surrendered his patent of March 22, 
1683, therefore, the "grant which is passing to the Duke 
of York," refers to a second and more beneficial one 
which, as a matter of fact, never passed the seals. 



" Cal. of State Papers. Col. 1681-1685. 1088. 



48 THE PENNSYLVANIA-MARYLAND 

This petition found a ready response, for on the same 
day, May 31, 1683, the King issued an order in council 
restraining the execution of his second grant to the Duke 
of York until ''the patents of Cecil Lord Baltimore be 
considered. ' ' On June 12, 1683, arguments by counsel for 
Penn and Baltimore were presented to the Lords of Trade 
and Plantations. The point in dispute was: "Did the 
Dutch possess the lands claimed by Mr. Penn in 1632, 
which Penn's agent undertakes to prove affirmatively ?"** 
The question of prior Dutch occupation was all impor- 
tant, and it was on Penn's supposed proof of this fact that 
the committee based their decision of 1685. 

The minutes of the proceedings of the Committee on 
Trade and Plantations show that the controversy dragged 
on for another year and a half before any decision was 
rendered. In the meantime Charles II had succumbed 
to a stroke of appoplexy, the Duke of York ascending the 
throne as James II. James had always been an intimate 
friend of William Penn, and at the latter 's request the 
committee promptly pushed the boundary controversy 
between Penn and Baltimore to a settlement. On Novem- 
ber 7, 1685, upon the recommendation of the committee, 
an order in council was issued. This stated that upon 
examination of the affairs in dispute between Penn and 
Baltimore, the committee had decided that "the land in- 
tended to be granted by the patent to Baltimore was only 
that which was uncultivated and inhabited by savages." 
It was held that the territory in dispute had been occupied 
and cultivated prior to 1632, and that the tract in question 
had always been regarded as a colony distinct from Mary- 
land. Therefore, it was ordered that the territory 
bounded on the east by the ocean and the river and bay 
of Delaware, and on the west by Chesapeake Bay, should 
be divided into equal parts by a line drawn from the lati- 
tude of Cape Henlopen northward to the fortieth degree. 
"In view of the fact that James was personally interested 



** Cal, of State Papers. Col. 1681-1685. 1120. 



BOUNDARY CONTROVERSY 49 

in the affair, it is not remarkable, ' ' says Shepherd, ' ' that 
such a decision was rendered."*^ 

The injustice of this decision is only too apparent. 
The absurdity of the argument based upon the descriptive 
phrase ''hactenus inculta" has been treated in the pre- 
ceding chapter, and the fact that Penn himself must have 
been aware of the destruction of Swaanendael, is simply 
another illustration of his eagerness to adopt questionable 
methods for self-aggrandizement. 

But there is another point to be noticed, namely, the 
language of the decision of the Committee on Trade and 
Plantations. This expressly states that *'for avoiding all 
future differences, the tract of land lying between the 
river and bay of Delaware and the Eastern sea, on the 
one side, and Chesapeake Bay on the other, be divided into 
two equal parts by a line drawn from the latitude of Cape 
Henlopen to the fortieth degree of northerly latitude, — 
the eastern half to belong to his Majesty and the other 
to remain to Lord Baltimore."**' 

The phrase ''to the fortieth degree of northerly lati- 
tude, ' ' unmistakably shows that the committee held Balti- 
more 's province to extend to the fortieth parallel, and in- 
asmuch as that parallel had been recently fixed by obser- 
vation taken with standard instruments, it seems as 
though Penn's plea to have the degrees computed at sixty 
miles each, was entirely disregarded. In fact, though the 
decision entailed the loss of the Lower Counties, it virtu- 
ally confirmed Baltimore's position as to his northern 
boundary. 

But Penn and his heirs never ceased their pretensions 
to the territory lying to the north and west of Newcastle, 
and in 1732, Charles, fifth Baron Baltimore, signed away 
all his rights to this disputed tract. The circumstances 
connected with this extraordinary donation will soon be 
related; for the present I shall consider the legal objec- 



*^ Proprietary Government in Penna., p. 135. 
*6 Maryland Fund Publications. No. 30, p. 84. 



50 THE PENNSYLVANIA-MARYLAND 

tions which Penn urged against the validity of Balti- 
more's title to the Lower Counties. 

One of the arguments that Penn adduced in contraven- 
tion of Baltimore's title was that "it is a prerogative 
inherent in the crown to possess all lands taken by con- 
quest." Delaware, he maintained, prior to the English 
conquest by Sir Robert Carr in 1664, was in the secure 
possession of the Dutch. This continued occupation ren- 
dered their title valid, and when the territory was con- 
quered by the English, the province passed into posses- 
sion of the Crown. Penn boldly asserts that this prin- 
ciple was according to Jus Gentium, and that any rights 
Baltimore may have had in the soil of Delaware, were 
completely extinguished in 1664 by the conquest of the 
Newcastle colony. The territory immediately reverted to 
the Crown, and could be parcelled out as the King saw fit. 
As usual, Penn appears in the role of special pleader, 
and his argument is far from convincing. At that time 
the standard authority on questions of international law 
was Grotius, whose great work, ''The Law of Peace and 
War," has served as a foundation for all subsequent trea- 
tises. In his exposition of the rights acquired by con- 
quest, Grotius expressly limits those possessed by the 
sovereign relative to conquered territory. In developing 
the subject he naturally speaks of re-conquered territory 
that originally had belonged to the victorious sovereign, 
and this introduces a discussion of the rights of subjects 
to enjoy their quondam privileges upon the expulsion of 
the enemy from their lands. This right of restoration to 
their former estate, Grotius terms the Right of Postlim- 
inium. This is the ''Right accruing to anyone in conse- 
quence of his returning home from Captivity. Among 
the many things which fall within the scope of the Right, 
lands in particular attract our attention. For as Pom- 
ponius observes, upon the expulsion of an enemy, lands 
naturally revert to their former masters."*^ 



*^ Grotius, "Rights of War and Peace." Univ. Classics Library, pp. 551-555. 



BOUNDARY CONTROVERSY 51 

Vattel, in his Law of Nations, lays special emphasis 
upon this Right of Postliminium. He specifically states 
that ''the sovereign is bound to protect the persons and 
property of his subjects, and to defend them against the 
enemy. When, therefore, a subject or any part of his 
property has fallen into the enemy's possession, should 
any fortunate event bring them again into the sovereign's 
power, it {■s undoubtedly his duty to restore them to their 
former condition; to re-establish the persons in all their 
rights and obligations, and give back the effects to the 
owners. In a word, to replace everything on the same 
footing on which it stood previous to the enemy's 
capture."** 

Penn, of course, makes no mention of the Right of 
Postliminium, and illustrates his contention by citing the 
fact that a merchant vessel that had been in possession of 
the enemy for twenty-four hours, was considered, upon 
recapture, as the King's prize. Now, strange to say, mer- 
chant vessels and movables were not subject to this Right 
of Postliminium, and Penn, who had studied law, should 
have been aware of that fact. His attempt to strengthen 
his case by the use of such an example, simply reveals 
another one of his efforts to impose upon Baltimore. 

The decision of the Committee on Trade and Planta- 
tions in 1685, forever deprived Baltimore of the Lower 
Counties. Nevertheless, the outraged proprietor con- 
tinued his efforts to regain their possession, and for many 
years affairs continued unsettled. In 1708, he petitioned 
Queen Anne to set aside the order in council of 1685, and 
to restore him to his former estate. This evoked a 
counter petition from Penn, whereupon Baltimore's plea 
was dismissed. In 1709, Baltimore presented a second 
petition, but this also was dismissed, and the order in 
council of 1685 was commanded to be put into execution. 
Unfortunately for Charles Calvert, this command was 
never enforced. Inasmuch as the order confirmed his 



*8 Law of Nations, 391-392; Chitty ed. 1857. Italics are the author's. 



52 THE PENNSYLVANIA-MARYLAND 

northern boundary to be the fortieth degree, its execu- 
tion would have saved him the loss of many millions of 
acres. In 1724, after years of border warfare, Charles, 
Lord Baltimore,, entered into an agreement with the 
widow of William Penn that no one should be disturbed 
in the possession of his land, and that for eighteen months 
no land near the boundaries of the respective provinces 
should be surveyed or taken up. But the death of Mrs. 
Penn, and the lax administration of the governors of each 
province, rendered this agreement nugatory. In July, 
1731, Baltimore petitioned George II to direct a settle- 
ment of the boundaries, and on May 10, 1732, was signed 
the important agreement between Charles, fifth Baron 
Baltimore, and John, Thomas, and Eichard Penn, sons of 
the great Quaker leader. 

By the terms of the instrument, the southern boundary 
of Delaware was to ''begin at the place on the said map 
called Cape Henlopen, which lies south of Cape Corne- 
lius ; thence to run to the exact middle point of the penin- 
sula ; thence northerly until it became tangent on the west 
to the periphery of a circle drawn at a distance of twelve 
miles from the town of Newcastle ; thence a line to be run 
due north until it comes into the same latitude as fifteen 
miles due south of the most southern part of the city of 
Philadelphia ; and thence due west. ' '*^ 

It can readily be seen that, on the part of Baltimore, 
this agreement was puerile. It deprived him of a strip 
of land twenty miles in width on his northern boundary. 
Moreover, the false location of Cape Henlopen aggra- 
vated his misfortune. The order in Council of 1685 had 
recognized Baltimore's claim to lands as far north as the 
fortieth parallel, and the surrender of territory for which 
his grandfather had so tenaciously contested, and for 
which Cresap and the Maryland borderers had endured 
so many hardships, is amazing. The false location of 
Cape Henlopen is, indeed, a puzzling factor, and seems 
to confirm the contention of the Maryland historians that 

<• Hall, Maryland Palatinate, pp. 152-153, 



BOUNDARY CONTROVERSY 53 

the map attached to the agreement of 1732 was a forged 
one. 

It was asserted by the Penns that Baltimore himself 
produced this map, and that if he suffered from any mis- 
takes contained therein, he alone was responsible. If it 
be true that Baltimore did produce this map, then, of 
course, he was liable for his own carelessness. But there 
is a strong suspicion that Baltimore was imposed upon in 
the conference of 1732, and that his surveyor-general 
never saw that famous chart. 

In the first place, the fortieth parallel had for many 
years been regarded as the northern boundary of Mary- 
land and its exact location was clearly shown by Augus- 
tine Herman's map of 1670. In the map attached to the 
agreement of 1732, all lines of latitude and longitude were 
carefully omitted, and the only line that is visible is the 
heavy red one that is supposed to mark the boundaries of 
Pennsylvania, Maryland, and the Lower Counties. 

The location of Cape Henlopen is of especial impor- 
tance. On Herman's map, that headland is clearly indi- 
cated at the mouth of Delaware Bay. On the map of 1732, 
Cape Henlopen has been placed twenty-five miles farther 
south, and the former Cape Henlopen is labelled Cape 
Cornelius. It seems to be a plain case of forgery, and 
admirably served its purpose of defrauding Baltimore.^" 

In the suit in chancery, the Penns stoutly defended 
the location of Cape Henlopen as shown on this forged 
map, and Lord Hardwicke in his opinion of 1750, adopted 
the contention of the Penn family and claimed that the 
cape received its name from a Dutch word signifying ' ' to 
disappear" or ''run away." This name, they claimed, 
was bestowed because Cape Henlopen was a false cape, 
and upon approach seemed to recede. Baltimore, on the 
other hand, endeavored to prove that the word originally 
meant ' ' to flow in, ' ' and, therefore, the cape was located 
at the mouth of Delaware Bay. 



50 Both maps are given in the appendix to Hall's Maryland Palatinate. 



54 THE PENNSYLVANIA-MARYLAND 

As usual, the arguments adduced by the Penns are 
ingenious, but they carry little weight. The original set- 
tlement made by the Dutch at Swaanendael, was located at 
the '^Horekill," which is but a few miles above the true 
Cape Henlopen. This was the settlement, that according 
to the claim of the Duke of York and William Penn, con- 
firmed the Dutch title to Delaware. But this colony ex- 
tended over only a few acres, and was soon destroyed by 
the Indians. 

Again, in the deeds of enfeoffment of August, 1682, the 
Hoarkills (or Whorekills) were styled '^Capin Lopen." 
This would seem to sustain Baltimore's side of the case, 
for the Hoarkills is a creek very near the present Cape 
Henlopen. It is true that the order in council of 1685 de- 
scribes the ocean as the eastern boundary of the province, 
but this may be easily explained by the lack of exact 
geographical knowledge which obtained in the seven- 
teenth century. The precise point where the bay widens 
to become the '' eastern sea" it would not be easy to 
determine. 

Another point that strengthens Baltimore 's contention 
that the true location of Cape Henlopen was at the mouth 
of Delaware Bay, is the act of Union passed at Chester, 
December 7, 1682. This measure, which united Pennsyl- 
vania and the Lower Counties, reads as follows : ''Foras- 
much as all that tract of land lying on the west side of the 
river Delaware, beginning from twelve miles above New- 
castle northward, and extending to the south cape, com- 
monly called Cape Henlopen, making the mouth of the 
Bay of Delaivare, of late divided into three counties, and 
called by the names of Newcastle, Jones and Whore- 
Kills. ' '^^ Therefore, it seems undeniable that the map of 
1732 was devised solely for the purpose of defrauding 
the fifth Baron Baltimore, and the spirited defense made 
by the Penns relative to the location of Cape Henlopen on 
this map, apparently points to such a conclusion. 



^^ Shepherd, Proprietary Government in Penna., p. 140. 



BOUNDARY CONTROVERSY 55 

In 1733, Charles, fifth Baron Baltimore, visited Mary- 
land, and on being advised of the fraud that had been 
perpetrated by the Penns, refused to carry out the agree- 
ment. The commissioners appointed to execute this 
agreement met on November 24, 1733, but after much 
wrangling accomplished nothing. On August 8, 1734, 
Baltimore presented a petition to the King, praying that 
he be put into possession of the Delaware. This was re- 
ferred to the Board of Trade, which reported to a com- 
mittee of the council, that although Delaware was appar- 
ently included in the charter of 1632, it had been for many 
years in the possession of the Penns. An order in council 
was then issued in May, 1735, recommending that the 
case be tried in a court of equity. 

Owing to numerous delays, the final decision was not 
rendered until May 15, 1750. Inasmuch as the suit was 
primarily instituted to compel the execution of the arti- 
cles of agreement of 1732, the decision rendered by the 
Lord Chancellor is hardly surprising. After calling atten- 
tion to the attempt of Lord Baltimore to evade the agree- 
ment, he dwells at length upon the expense incurred by the 
Penns in the settlement of the Lower Counties. He then 
ordered the articles of agreement to be fulfilled, and di- 
rected that Baltimore pay the entire cost of the suit as 
ascertained by a master in chancery. 

Even this did not terminate the controversy, for dur- 
ing the next ten years continued disagreement prevented 
the execution of the order of the court. At length in 1760, 
commissioners were appointed to settle the question of 
the boundary lines, though the actual work was done by 
two expert surveyors, Charles Mason and Jeremiah 
Dixon. In 1767, the northern boundary of Maryland was 
fixed at 39° 44', and extended 230 miles from the tangent 
line. In 1769, an order in council confirmed the proceed- 
ings of the commissioners, thus bringing to a close one of 
the most remarkable boundary controversies in American 
colonial history. 



CHAPTER IV 
THE CHARACTER OF WILLIAM PENN 

Few subjects in our colonial history have stirred up 
so violent a controversy as that which has marked the 
estimates of the character of William Penn, In the eyes 
of his devoted biographers he was little less than a saint ; 
in the opinion of Macaulay, he was ' ' a poor, shallow, half- 
crazed creature." Doubtless the founder of the great 
commonwealth of Pennsylvania, had many sterling qual- 
ities. His adherence to a sect amongst the most despised 
in England, and his many imprisonments because of his 
religious principles, are proofs of a sincere attachment to 
the Quaker belief. But there is ground for the adverse 
criticism that has been directed against him. In the pur- 
suit of his aims he was often disingenuous, and, as Chan- 
ning observes, ' ' There is much in his career that is hard 
to reconcile with the uprightness of character and scrup- 
ulousness of dealing which one has a right to expect in a 
leader of a religious sect."^^ Therefore, because of its 
bearing upon this inquiry, we shall summon a few wit- 
nesses in order to ascertain the character of Penn, whose 
statements concerning his territorial rights have contrib- 
ul^ed in no small degree to form the opinion of even im- 
partial historians. 

It is certain that Penn often figured in the role of in- 
triguer. Seventeenth century England was not noted for 
its spiritual atmosphere, and at the court of Charles II 
many forms of vice and corruption flourished. But Penn, 
though he mingled freely with the carefree crowd that 
thronged the corridors at Whitehall, scrupulously re- 
frained from their wild excesses. Prudence dictated his 
every action, and prudence combined with rare mental 
sagacity, enabled him to perceive his objective clearly, 
and to strive vigorously for its attainment. 



«2 History of the U. S. Vol. II. p. 102. 
56 



BOUNDARY CONTROVERSY 57 

His original feelings toward the Catholic Church, and 
his subsequent modification of them, reveal a truly mar- 
vellous skill in trimming his sails to meet the varying 
winds of circumstance. At first bitterly hostile to every 
doctrine and tradition of that Church, in the last years 
of the reign of Charles II, Penn experienced a remarkable 
change in his religious convictions, and with the accession 
of his friend, James, Duke of York, this former arch- 
enemy of the ' ' Church of Rome, ' ' became in turn a power- 
ful friend of Catholics, and in his writings supported their 
claims to toleration. 

That this change was made because of the known 
friendship of Charles II, especially in his last years, for 
his Catholics subjects, and of the fact that his brother 
James, Duke of York, had long been a convert to their 
faith, can hardly admit of doubt. The essential tenets 
of the Friends were diametrically opposed to the teach- 
ings of the Catholic Church, and it is hard to believe, that 
Penn, like Saul of Tarsus, should suddenly have the 
scales fall from his eyes and hear the divine command. 
The convictions of a lifetime are not so easily disturbed, 
and Penn's policy from the last years of Charles to the 
expulsion of James, clearly shows that he had an eye to 
his own interests. He was, in fact, a thorough oppor- 
tunist, as a short examination into his conduct from 1678 
to 1688 will demonstrate. 

In 1670, William Penn published his first direct attack 
on the Catholic Church. It was a pamphlet entitled, ''A 
Seasonable Caveat Against Popery," and seems to have 
been principally concerned with a refutation of the charge 
that he, and the Quakers in general, were *' Jesuits" in 
disguise. The language of this pamphlet, which is scur- 
rilous in the extreme, shows an intense hatred of all 
things Catholic. "Her doctrine is the doctrine of devils, 
and her priests though forbidden to marry, keep as many 
strumpets as their purse or lust shall please; while the 
revenue of the Pope is enhanced by licensing under his 



58 THE PENNSYLVANIA-MARYLAND 

own seal the resorts of these debased women. "^^ He next 
denounces the doctrine of transubstantiation, and at- 
tempts to prove that the Fathers of the Church openly 
justified fornication, perjury, and theft. 

In the course of the next few years, Penn's opinions 
seemed to have remained the same, for in 1679, when 
Titus Gates pretended to discover a Popish plot, Penn 
immediately subscribed to the popular belief, and wrote a 
pamphlet setting forth his views. This brochure, ''An 
Address to Protestants of all Persuasions," is another 
diatribe directed against the ' ' Papists " ; in it the author 
pleads for greater sympathy and cooperation between the 
warring Protestant sects. His theme is that Protes- 
tantism must present a solid front to the insidious attacks 
of Rome, or the fruits of the Reformation will be lost. 

The year 1679 marks a critical time in English his- 
tory. The King had been forced to dissolve Parliament 
and a new election was at hand. The Whigs, or the party 
in opposition to the King, were gaining strength with 
every day, and Penn, in his hatred of all things ''Popish," 
became a rampant Whig and supported Algernon Sydney, 
a candidate for Parliament from the district of Guilford. 

In this canipaign, Penn's main contribution was his 
pamphlet, "England's Great Interest in the Choice of a 
New Parliament. ' ' From it we learn of his belief in the 
Popish plot, for he strongly advises the voters to choose 
' ' only sincere Protestants. ' ' Sydney, though he received 
the majority of votes, was ruled out on a technicality, and 
at the next election, Penn again rallied to his support. 

In the second campaign Penn wrote another pamphlet 
which was intended to support the Whigs, but which was 
really a repetition of the old plea for cooperation among 
Protestants, and effective resistance to the schemes of the 
"Jesuits." He went even so far as to devise a test affir- 
mation that would completely exclude all Catholics from 
any office of trust under the government. This test, Penn 



" S. G. Fisher, The True William Penn, p. 155. 



BOUNDARY CONTROVERSY 59 

suggested, should be administered to everyone in Eng- 
land ; all persons being obliged to subscribe to it on Ash 
Wednesday, the day ''when the Pope curses all Protes- 
tants. ' ' This, and the concomittant circumstances, should 
be borne in mind when one considers Penn's subtle advo- 
cacy of the measures of James II. 

In 1685, the Duke of York ascended the throne as 
James II, and Penn's chameleon mind immediately 
adapted itself to this new change of circumstances. Be- 
sides, the boundary dispute was before the committee of 
the Privy Council awaiting their decision, and it behooved 
him to act with all circumspection. He had always main- 
tained friendly relations with James, and at Penn's re- 
quest that worthy monarch commanded the Committee on 
Trade and Plantations to render a speedy decision. That 
it should be in favor of Penn, was, of course, understood. 
In 1685, the aforementioned judgment was given, and 
Penn came into possession of the Lower Counties. This 
was the first royal quid pro quo of James II, and there- 
after Penn was a violent partisan. 

Eeligious convictions appear to have been conveni- 
ently forgotten, and Penn the extreme Protestant, sud- 
denly began to regard the Catholics with marked benevo- 
lence. When one remembers that less than five years 
previously he had enthusiastically supported Sydney and 
even went so far as to suggest a test aJSirmation that 
would exclude all Catholics from office, then, indeed, must 
one view his change of sentiments with something like 
suspicion. 

That Penn at this very time entertained grave fears 
concerning the "pretensions" of the Catholics is clearly 
shown in a private letter to his steward at Pennsbury. 
"In France," he says, "not a meeting of Protestants 
left, they force all, by not suffering them to sleep, to con- 
form; they use drums, or fling water on the drowsy till 
they submit or run mad. Such as fly and are caught are 
sent to the galleys to row — believe me, it is an extraordi- 



60 THE PENNSYLVANIA-MARYLAND 

nary day, such as has not been since generations ago. 
Read this to weighty friends and magistrates in pri- 
vate. "^^ It is rather easy to discern where Penn's secret 
sympathies lay, and the admonition contained in the last 
sentence admirably illustrates the "prudent Mr. Penne." 

The eminent Quaker was so flattered by his position of 
intimacy with James II, and his head was so filled with 
schemes of self-aggrandizement, that he was ready to 
lend his active support to whatever measure James might 
favor. As an admirer aptly phrases it : "He was in too 
deep with the King to permit him to drop the important 
public position in which he had suddenly found himself 
since the accession of James. "^^ 

In 1686, in a second letter to his steward, Penn im- 
plores "the Lord to keep us here in this dark day. The 
King has discharged all Friends by a general pardon, and 
is courteous to us, though as to the Church of England 
things seem pinching. Several Roman Catholics get much 
into places in the army, navy, and court. "^® Can it be 
doubted that Penn suspected James of designs for re- 
establishing the Catholic Church in England? Yet Penn 
continued his staunch support of James, and never pub- 
licly wavered in his allegiance. In the latter part of the 
year 1686, Penn undertook a< mission to William, of 
Orange, and endeavored to exact a promise from that 
shrewd statesman that if he succeeded to the throne of 
England, the test laws excluding dissenters and Catholics 
would be repealed. Penn's duplicity was so evident that 
it only served to make William and his court regard him 
with contempt. 

But the culmination of Penn's masquerading was not 
reached until the spring of 1687. This ushered in the 
famous "Declaration of Indulgence," and henceforth all 
dissenters and Catholics were placed upon an equal foot- 



^* S. M. Janney, Life of Wm. Penn, p. 259. Italics are mine. 
°5 S. G. Fisher, The True William Penn, p. 166. 
"6 S. M. Janney, Life of Wm. Penn, p. 271. 



BOUNDARY CONTROVERSY 61 

ing with the members of the Established Church. Unde- 
niably the measure was a mighty stride along the road to 
progress and religious liberty, and any one who honestly 
rallied to its support cannot be too highly praised. But a 
careful consideration of Penn's early life, inevitably leads 
one to the conclusion that in this case, as in many others, 
he appreciated the character of The Double Dealer. 

The sentiments contained in the pamphlet, "Good Ad- 
vice to Roman Catholics and Protestant Dissenters," are 
purely pinchbeck, and do not ring true. The Catholics 
have ceased to be the dangerous people that they were in 
1679-1680, and now they are ''sensible people," who know 
"their own interest," and would not do what the majority 
in England disapproved of. Moreover, the King had given 
his word that only a few Catholics would be placed in 
office, and Penn, a student of constitutional questions, 
professed to be thoroughly satisfied with merely the royal 
promise. 

But not content with writing a pamphlet in support of 
the Declaration of Indulgence, Penn afterwards traveled 
over the kingdom speaking in its favor. Now in 1679 he 
had supported Algernon Sydney, the Whig candidate for 
Parliament. As a means of assisting his friend, Penn 
wrote the aforementioned brochure entitled, "England's 
Great Interest in the Choice of this New Parliament," in 
which he strenuously maintained that "no law could be 
made or abrogated in England except by the Parliament, 
and that anything else was tyranny." In other words, a 
Declaration of Indulgence was tyranny in 1679, while in 
1687 it had grown to be a sovereign remedy against Par- 
liamentary oppression. Was there ever a greater change 
in a shorter space of time ? 

Immediately after the failure of Sydney in the election 
of 1680, Penn had written an acrimonious pamphlet which 
he styled, "One Project for the Good of England." 
Throughout this remarkable contribution, the "Papists" 
are bitterly attacked for their "design" to capture the 



62 THE PENNSYLVANIA-MARYLAND 

government ; and it is asserted that Catholics had a dif- 
ferent theory of government; that they believed in des- 
potism; and that ''if they got into power they would 
wreck the liberties of England." Indeed, it must be re- 
membered that Penn was so anxious to prevent the 
dreaded sect from holding office that he devised a new 
test affirmation that would effectively bar from office any 
adherent of that religion. 

And now in the brief space of eight years, these ' ' dan- 
gerous people" are no longer wolves but the merest 
lambs ; in fact, they are ' ' sensible people ' ' who would not 
for a moment think of conspiring to control the govern- 
ment. Of course, Penn's whole policy is transparent. 
Self-interest is but poorly concealed, and egoism is 
plainly the force that controlled most of his actions. It is 
incredible that Penn's later professions could have been 
sincere, and his conduct during those eight years reveals 
a man who would allow nothing to stand between him and 
the object he sought to attain. 

When we come to consider Penn's administration of 
his province, it is evident that most of his biographers 
have been led astray by traditional estimates of his char- 
acter, and that his liberal views so warmly praised by 
many writers, are difficult to discover. From his intimate 
association with the Duke of York, Penn must have ab- 
sorbed many of his exalted ideas of prerogative. On his 
return to England in the summer of 1684, he delegated his 
authority as governor, to a provincial council. By the 
charter of Pennsylvania, the council had the important 
privilege of initiating legislation, but from the very begin- 
ning this right was obstinately contested by the Assembly. 
In Maryland the same question had arisen, and Cecilius 
Calvert had gracefully relinquished this prerogative. 
Not so with Penn. 

Greatly annoyed at the contest which the Assembly 
was waging for their liberty, Penn reduced the number 
of councillors to five, whom he denominated commis- 



BOUNDARY CONTROVERSY 63 

sioners. His letter of instructions to them will serve as 
an index to at least one side of his character — his love, 
and in many respects, his abuse of authority. Fully con- 
scious of his influence with King James II, Penn deter- 
mined not to brook further resistance by the Assembly. 
His instructions to the commissioners ordered them to 
rule with a ''high hand," and not to permit the deadlocks 
in legislation that had so often occurred between the two 
houses. They had the power "to enact, annul or vary 
laws as if he himself were present." It is certain that 
he had ceased to feel bound by the charter, which had 
conferred upon the freemen equal powers in legislation. 
But this was not all. Eebuking the Commissioners for 
their neglect of ''Duty," he "went on in his instructions 
like an Eastern despot. ' '" Next he threatened to dissolve 
the whole frame of government, and what power the 
Assembly would have had under the proposed new frame, 
one can easily imagine. As a final pronouncement, he 
ordered the Commissioners to declare at the next meeting 
of the Assembly, that all laws except the Constitution 
were abrogated, and that new laws would have to be 
passed. When one bears these facts in mind, it is rather 
easy to understand Penn's tactics in his dealings with 
Lord Baltimore. He was a dangerous man to oppose, 
and this was especially so during the reign of his friend, 
James II. 

In the complicated situation which existed in New 
Jersey, Penn's conduct was also questionable. On March 
18, 1674, Berkeley sold his interest in the Jerseys to 
John Fenwick and Edward Byllinge, both of whom were 
Quakers. By this transaction, William Penn is intro- 
duced to the student of American history. Shortly after 
this purchase, the two owners quarreled, and the dispute 
was referred to Penn for arbitration. He awarded 
Byllinge nine tenths of the territory, and Fenwick was 
given the remaining tenth, together with a considerable 



S. G. Fisher, True True William Penn, p. 344. 



64 THE PENNSYLVANIA-MARYLAND 

sum of money. Byllinge, however, soon afterwards be- 
came bankrupt, and made over bis interest to Penn, 
Gawen Lawrie, and Nicholas Lucas, to be held in trust 
for his creditors. Fenwick then resolved to colonize his 
one tenth, and in order to obtain the necessary means, 
leased his part of the province to John Elbridge and Ed- 
mund Warner. This lease, which was for one thousand 
years, virtually deprived Fenwick of all control within his 
own tenth. 

In the meantime, Penn, Lucas, and Lawrie, were set- 
tling the affairs of the Byllinge estate, and to expedite 
matters it was suggested that the whole of West Jersey 
be placed under the control of the trustees for Byllinge. 
Thereupon, Elbridge and Warner transferred to Penn 
and his associates, their interest in the tenth that had 
been leased to them by Fenwick. After this transaction 
had been completed, Penn, Lawrie, and Lucas proceeded 
to re-convey Fenwick 's tenth to Elbridge and Warner in 
fee simple, thus preventing a reversion to Fenwick and 
heirs. ''This," says Tanner, ''was sharp practice, though 
perhaps legal. "^^ 

Fenwick vehemently protested against this theft of 
his share, but was finally won over by Penn to a " peace- 
ful settlement," and in 1682-83, Elbridge and Warner 
released their interests in the province, when Penn be- 
came sole owner of the tenth. This is only one of the 
many transactions in which the founder of Pennsylvania 
appears in an unfavorable light. 

In the matter of encroachments upon the territory 
which he knew to lie within the boundaries of Maryland, 
Penn is likewise open to censure. In 1701, he granted 
fifteen thousand acres to some Quaker families on the 
condition that they would settle in Cecil County. "Nine- 
tenths of this large tract was south of the present Mary- 
land line, and the whole of it twenty miles south of Balti- 
more's northern boundary.'"^ 



** Province of New Jersey, p. 11. 

*8 Archer, Maryland Fund Publications. No. 30, p. 98-99. 



BOUNDARY CONTROVERSY 65 

Again, after the decision of 1685 had defined the 
boundaries of Maryland, Penn persuaded a Welsh colony 
that had settled at Eadnor, to leave their homes and 
occupy a tract of thirty thousand acres which was laid 
out along the Delaware-Maryland boundary line, yet five 
thousand acres of this tract lay within the limits assigned 
to Maryland. In a word, the desire of Penn to seize ter- 
ritory which he knew to belong to Lord Baltimore, 
hardly points to a strict observance of the seventh com- 
mandment. 



CHAPTER V 
CONCLUSION 

Penn's intolerance, wMch appears to be established 
by tbe preceding chapter, does not, indeed, disqualify 
him as an interpreter of the charter provisions concerning 
his territorial rights, but it does justify the inquirer in 
seeking confirmation of that proprietary's claims. It 
has always counted much in his favor that the early 
annals of Pennsylvania are unstained by record of perse- 
cution on account of religion. It has been shown, how- 
ever, that the adoption of a policy of intolerance would 
not have advanced his interests, and to them Penn was 
never indifferent. 

In the matter of political liberty at least one of his 
admirers has found in Penn's correspondence proof of 
his despotic principles. A natural consequence of such 
principles would be an indifference to the rights of others, 
and this is the burden of the charge against Penn. 

It is possible that Penn's connection with certain 
transactions in the Jerseys did not transcend the limits 
of the law, though one authority describes it as ''sharp 
practice. ' ' Still more sharp was the grant to his Quaker 
colonists of a great tract within the limits of even the 
diminished Maryland that we know. When, in 1685, the 
northern boundary of that province had been determined 
by authority, his representations persuaded settlers from 
Radnor, in the latitude of Philadelphia, to occupy the 
lands of his neighbor. 

In judging the merits of the Pennsylvania-Maryland 
boundary dispute, the first fact to remember is that after 
examining Penn's application for a grant of land, and 
being inclined to promote it, the Lords of Trade and 
Plantations were embarrassed by the holdings of Charles 
Calvert and the Duke of York. On that occasion Sir 
John Werden, representative of the latter, protested 

66 



BOUNDARY CONTROVERSY 67 

against the inclusion of Newcastle and the Lower Coun- 
ties in any patent to be granted to Penn. Baltimore's 
agent, on the other hand, declared that the Susquehanna! i 
Fort was the northern boundary of Maryland. There was, 
therefore, no sufficient foundation for Penn's later claim 
that the parallel was supposed to fall lower than it 
actually does. At any rate, in 1680 the Lords of Trade 
and Plantations had no doubt on that subject. But the 
loss of Philadelphia being threatened, Penn believed it 
necessary to put a new interpretation upon the terms of 
his grant. 

In September, 1681, in a letter Penn cautioned half 
a dozen citizens of Cecil and Baltimore counties against 
the further payment of quit-rents to Lord Baltimore. 
Their holdings, Penn informed them, were within his 
grant, and, as if this assurance were not convincing, they 
were promised that his rule would be found "easy, free, 
and just." The connection between his rule and Ms 
rights is by no means clear. One entirely ignorant of the 
career of William Penn might regard this attempt to 
unsettle the established order in an adjacent province 
as an emanation of innocence. On it, however, contem- 
porary records turn other lights and with their assistance 
an experience of the world or an acquaintance with his- 
tory seems to justify the conclusion that his interference 
was carely considered and his first step artfully planned. 

King Charles II had ordered a speedy adjustment of 
of the boundaries between Penn's province and that of 
Lord Baltimore, but an early settlement did not suit the 
immediate plans of the former, for he sent from England 
a friend, who made a secret survey of the Upper Chesa- 
peak, or at any rate made one without consulting Calvert. 
The results were not satisfactory and, for a time, it 
was feared that it would be necessary for Penn to pur- 
chase a port from Lord Baltimore. William Markliam, 
a kinsman of the Pennsylvania proprietary, then adopted 
and persevered in a policy of delay. When finally he 



68 THE PENNSYLVANIA-MARYLAND 

consented to meet Calvert, he had lost the glasses of his 
sextant, but the use of a borrowed instrument convinced 
him that Upland (Chester, Pa.) is some twelve miles 
south of the fortieth parallel. Though observations were 
discontinued, Penn was not inactive because until meas- 
urements were resumed he was engaged in acquiring 
the Lower Counties. In his situation this was easily- 
accomplished. 

The Duke of York, ignoring the territorial rights of 
Calvert, caused the Lower Counties to be occupied and 
declared that he would remain in possession until title 
had been determined. It was later admitted by the 
attorney of the Duke that his rights were conveyed not 
by a royal charter but by royal acquiescence. Notwith- 
standing the lack of a title, the Duke, by deeds of enfeoff- 
ment, disposed of this territory to William Penn, and, 
knowing that the title was defective, obtained, in March, 
1683, from his brother Charles, a grant of the three 
Lower Counties. Under this conveyance Penn continued 
to hold the tract. In a word, William Penn acquired from 
the Duke of York his title to the territory that we know 
as Delaware. To it, as is well known, the Duke himself 
had no legal title, and Penn's assumption of governmental 
powers over it was therefore without warrant in law. In 
October, 1682, he quietly took possession and at once in- 
vited Calvert to a conference. 

At the meeting of 1682, which took place in Anne 
Arundel County, Maryland, Penn produced a royal letter, 
prepared no doubt at his request and designed to promote 
his interests. This communication recommended ''that 
Lord Baltimore take Watkins Point as his southern 
boundary, and as soon as possible set down his northern 
boundary with Penn by an admeasurement of the two 
degrees in his patent, sixty miles to a degree, from the 
southern boundary as already settled." As the Mary- 
land charter made no mention of ''two degrees," Balti- 
more declined to have its provisions superseded by a 



BOUNDARY CONTROVERSY 69 

royal letter. Then Penn made other proposals from any 
of which he expected an advantage, but Lord Baltimore 
firmly insisted upon his charter rights. Though the for- 
mer, who was prepared "to do the thing that was right 
and just," did not lack friendly phrases, it is certain 
that he was wanting in frankness. 

When the patent was granted to the second Lord 
Baltimore, 1632, it was believed that each degree of lati- 
tude contained sixty miles, whereas at the time that the 
present controversy arose it was known that each degree 
is a little more than sixty-nine miles. By taking it for 
granted that Maryland was two degrees in width, and 
estimating each at sixty miles, the equivalent early in the 
seventeenth century, Penn had hoped to gain twenty 
miles. But the width of Maryland, as determined by its 
charter, was originally the zone between the fortieth 
parallel and Watkins Point. Unable to agree at either 
the conference held in Maryland, or a later one which 
took place in Delaware, it became necessary to submit the 
dispute to the Lords of Trade and Plantations. In the 
hearing before that committee, both parties were repre- 
sented by counsel. The main point then to be determined 
was whether in 1632 the Dutch possessed the lands 
claimed by Penn. Chiefly on the answer to this question 
the decision was based. While the case was pending, 
Charles II died. On his accession King James II, hith- 
erto an intimate friend of Penn, pushed the matter to a 
prompt settlement. In 1685, the tribunal decided "that 
the land intended to be granted by the patent to Balti- 
more was only that which was uncultivated and inhabited 
by savages." It was held that the disputed tract had 
been occupied and cultivated before 1632, and that it had 
alwaj^s been regarded as a colony distinct from Maryland. 
Therefore, it was concluded to divide, by a line from the 
latitude of Cape Henlopen, north to the fortieth parallel, 
the territory between Chesapeak Bay on the west and the 
Delaware River, Delaware Bay, and the Atlantic Ocean 



70 THE PENNSYLVANIA-MARYLAND 

on the east. The lands lying west of this line were 
awarded to Calvert, while those to the east of it were to 
belong to his Majesty. 

The brief existence of Swaanendael did not interrupt 
in the slightest degree the rule of savages in Delaware. 
In another point the Committee of the Lords of Trade 
gave an official approval to the claim of Calvert, namely, 
that his northern boundary was the parallel of forty 
degrees. In a word, by this decision, Calvert had lost 
Delaware (the Lower Counties), but, what was more im- 
portant, had been confirmed as to his northern boundary. 
This part of the decision, too, was destined to prove of 
no advantage to Calvert, for the order was not executed. 

Posting themselves on this partial success, Penn and 
his heirs renewed the contest for the land to the north 
and to the west of Newcastle. In 1732, Charles, fifth 
Baron Baltimore, signed away all his rights thereto. In 
this transaction one sees, that the Penns had power not 
only to move the court but that, by means of a map, which 
appears to have been forged, they succeeded in changing 
the location of Cape Henlopen. The philology of the 
Penns proved, at least to their own satisfaction, that the 
name Henlopen signifies to disappear or to run atvay. 
Baltimore, on the other hand, attempted to show that the 
word originally meant to flow in, and thence inferred that 
the cape was situated at the mouth of Delaware Bay. 

Discovering on his arrival in America that he had 
been imposed upon, the fifth Baron Baltimore refused, 
in 1733, to carry out his agreement with the Penns and 
in the following year petitioned the King to be put in 
possession of Delaware. Two years later the case was 
referred to a court of equity. By influencing the decision 
of the Lord Chancellor, adverse possession seems to have 
assisted the Penns. Thereafter the matter dragged its 
slow length along until 1760, when commissioners were 
appointed to settle the boundary line. Their determina- 
tion, based upon the recommendation of Charles Mason 



BOUNDARY CONTROVERSY 71 

and Jeremiah Dixon, finally set at rest the ancient 
dispute. 

The authenticity of the map of 1732, the use of which 
deprived Calvert of a large tract, remains one of the 
few unsettled questions connected with the dismember- 
ment of Maryland. On this subject, the writer believes no 
important discovery is seriously to be expected. It is 
believed that the origin of the circle around Newcastle, 
a point that perplexed Archer, has been satisfactorily 
explained in the preceding pages." Penn's reasoning, 
which would restrict the width of Maryland to one degree, 
has been shown to be insufficient, and, in our opinion, his 
established character justifies the conclusion that most 
of his statements concerning the title to that part of his 
province below the fortieth parallel require the support 
of witnesses less interested and more credible. 



•^ See introduction, p. 6. 



BIBLIOGRAPHY 

Ameeican Historical Review, Vol. 17. (1911-1912). 
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Proceedings of the Council (1636-1692.) (1885- 
1903). 
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BozMAN, J. L., History of Maryland. (1837). 
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(1890). 
Brodhead, J. R., History of New York. (1853). 
Browne, W. H., George and Cecilius Calvert. (1890). 

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Hall, C. C, The Lords Baltimore and the Maryland Palatinate. (1904). 
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Proud, Robert, History of Pennsylvania in North America. (1797). 
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72 



VITA. 

The author was born at Fredericksburg, Texas, De- 
cember 9, 1890. He completed a course of eight years at 
the Brookland Public School, and prepared for college at 
the Emerson Institute, of Washington, D. C. He matricu- 
lated in the School of Letters in the Catholic University, 
October 5, 1908. In 1912 he was graduated with the de- 
gree of Bachelor of Arts, and the following year pro- 
ceeded to the degree of Master of Arts in the Faculty of 
Philosophy. 

In the fall of 1913 he returned to the Catholic Univer- 
sity to pursue a course leading to the degree of Doctor 
of Philosophy. The work done thereafter was under the 
direction of the Department of American History in 
which the major course was followed. The first minor 
was in the Department of English Language and Litera- 
ture, and the second in the history of Modern Europe. 






i< ^>i 



